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HomeMy WebLinkAbout02/10/99 AGENDABREMERTON CITY COUNCIL 239 4TH STREET BREMERTON, WA 98337 CITY COUNCIL AGENDA FEBRUARY 10, 1999 1. CITY COUNCIL, STUDY SESSION: 5:00 - 5:30 P.M. A. General Council Business 2. CALL TO ORDER: 5:30 P.M. A. Pledge of Allegiance B. Invocation 3. CONSENT AGENDA Items listed below have been distributed to Council members in advance for study and will be enacted by one motion. If separate discussion is desired on an item, it may be removed from the Consent Agenda and placed on the Regular Agenda at the request of a Council member.__. A. Minutes of Meeting - January 27, 1999 #AB99-024 B. Reimbursement of Indigent Appellate Costs #AB99-025 4. CLAIMS/CHECK REGISTERS 5. COUNCIL MEMBER REPORTS 6. MAYOR'S REPORT 7. LEGISLATIVE REPORT 8. PUBLIC.RECOGNITION -- (Comments Limited to 3 Minutes) 9. ADJOURNMENT OF MEETING AGENDA BILL ' BREMERTON CITY COUNCIL 1. ~U_~: FOR AGENDA OF: FEBRUARY 10, 1999 ORIGINATING DEPT: CITY COUNCIL ORIGINATOR: M~KE SHEPHERD, PRESIDEN, MINUTES OF MEETING -- JANUARY 27, 1999 DATE SUBMITTED: FEBRUARY 4, 1999 2. ~E~: (comlnent on back 3. EXHIBITS: if necessary) ENDORSEMENT INFORMATION APPROVED BY COUNCIL PRESIDEN/ FJ~R ~J~MITTAL: MAY OR 4. SUMMARY STATEMENT AND REOUIREMENT FOR COUNCIL ACTION: 8. RECOMMENDATION: 9. RESPONSIBLE OFFICIAL: ENFORCEMENT OFFICIAL: EXPIRATION DATE: REVIEW DATE: 10. NOTICE OF ACTION ~~ PULLED TABLED APPROVED DISAPPROVED COUNCIL DIRECTIVE: DATE: TAPE #1594 UNAPPROVED DRAFT CITY COUNCIL MEETING MINUTES JANUARY 27, 1999 The regular meeting of the City Council of the City of Bremerton was called to order in the City Council Chambers, 239 4th Street, Bremerton, Washington, Wednesday, January 27, 1999, at 5:30 P.M., with Council President Mike Shepherd presiding. Council members present were Carlos Montgomery, Carol Arends, David Farr, Lon Overson, John Law, Cecil McConnell, and Wayne Olsen. Council member Jim Reed was absent. Also present were City Attorney Glenna Malanca and Deputy City Clerk Paula Johnston. The meeting opened with the Pled'ge of Allegiance led by Council President Shepherd, and invocation given by Reverend Dayle Johnson of Full Gospel Assembly. CONSENT AGENDA A. Motion to Ratify Settlement of Garcia v. City of Bremerton et al. #AB99-017 #0020 M/S/C/U (McConnell/Montgomery) Motion to approve Consent Agenda as presented. CLAIMS/CHECK REGISTERS Vouchers audited and certified by the auditing officer as required by RCW 42.24.080, and those expense reimbursement claims certified as required by RCW 42.24.090, have been recorded on a listing that had been made available to the Council. #0040 M/S/C/U (Montgomery/Arends) On January 27, 1999, the Council does approve for payment those vouchers included and further described as follows: 227357 through 227359, 227362, and 227386 through 227593 in the amount of $461,857.88; Regular Payroll in the amount of $814,938.98 for pay period ending January 15, 1999; and Retiree Payroll in the amount of $119,436.81 for pay period ending January 31, 1999. COUNCIL MEMBER REPORTS Mr. Law gave a special report on a meeting held with Captain J.A. Holden, Commanding Officer of the Bremerton Naval Station, in response to a few Bremerton ferry riders who complained about sailors riding the early-morning passenger boats from Bremerton to Seattle. It was pointed out that the Navy planned very carefully to avoid any problems, and have required the sailors to follow strict provisions so as to interfere as little as possible with the commuters. It was stated that these sailors deserve the same respect and privileges as anyone else, and instead of complaining, it was suggested we "welcome them aboard". Mr. Montgomery_ announced a combined District 6, 7, & 8 meeting to be held Thursday, February 11, 1999 at the Bremerton School District Building located at 134 N. Marion, from 7:00 to 9:00 P.M. Acting Police Chief Rob Forbes will be available to TAPE #1594 City Council Reg. Mtg. Minutes January 27, 1999 Page 2 of 5 answer questions about the Bremerton Police Department. He concluded by reporting the DARE program held its fourth graduation today, and added that the program is very well received in the City. Mrs. Arends acknowledged Dan Gomez, recently appointed to the Cable Advisory Committee. She commented on all of the activities that she has seen him involved in recently, such as a member of the orchestra at a recent performance at the Admiral Theater, and stated she appreciates his talents. Mr. Fart reported that he has heard many positive comments about the new Haddon Park, and it appears to be very well received by the citizens in his District. He reported there are plans for a kiosk on the site to a~ldress the issue of the pet owner's obligation to cleanup after their pets and also remind them about the leash law. At the upcoming District 6, 7, & 8 meeting, time will be allowed for discussion on naming the park and any other related issues. Mr. Overson reported on a recent event he attended, where he had the opportunity to meet with crewmembers of the USS TARAWA. He was pleased to welcome them to Bremerton for the next five months. Mr. Law announced the next District 3 meeting will be held Tuesday, February 16, 1999, at 7:00 P.M., at the Senior Center located at 13th & Nipsic. He encouraged citizens to visit one of the four restaurants now opened in the Manette area. Mr. McOonnell announced the next combined Districts 1 & 2 meeting to be held Thursday, February 18, 1999 at the Sheridan Park Center located on Lebo. President Shepherd appreciated Judge James Docter for attending the District 5 meeting held last week. He stated that he was also at the event to welcome the USS TARAWA along with several other Council members and the Mayor. MAYORS REPORT Mayor Horton was pleased to announce that City of Bremerton Engineer Randy Witt received the 1998 Washington State Department of Transportation Team Excellence Award, acknowledging team efforts, which lead to the development of an electronic billing system. She referred to comments made earlier by Councilman Law, and stated that she will be attending a meeting with Commissioner Endresen, and the Ferry Advisory Sub Committee, of the Washington Transportation Committee, to discuss the Bremerton ferry service and the difficulties experienced lately. She announced that there would be an update on the Sinclair Landing Project at the Council meeting next week. In closing, she reported on a meeting attended along with Councilman Shepherd, about the Endangered Species Act, discussing saving salmon issues. TAPE #1594 City Council Reg. Mtg. Minutes January 27, 1999 Page 3 of 5 LEGISLATIVE REPORT In response to concerns from several citizens, it was reported that Diamond Parking has re-assigned three stalls adjacent to the Kiss & Ride lanes in the parking lot at the base of 2® Street as "Taxi Only" stalls. This will provide better access to taxis for ferry patrons, especially those who have difficulty walking uphill. A response was also provided to John Becker who felt the bulb-outs recently installed on Burwell Street would pose a liability to the City. The City Engineer provided a letter stating that the bulb-outs are part of standard roadway design practices, and do not constitute additional liability. PUBLIC RECOGNITION Ruth Enderle, Admiral Theater, discussed receht programs held at the Theater. She invited the public to attend a special show planned for Saturday, January 30, 1999, where everyone who buys one ticket, will receive 5 more free. Dinner tickets are $35.00 for the first dinner, and $20.00 for each additional dinner. The evening will be dedicated to the crew of the USS TARAWA as a "welcome to Bremerton" event. 9A - BID AWARD FOR CALLOW AVENUE PRIORITY II STORM DRAINAGE PROJECT, #AB99-018 The Callow Avenue Basin Priority 2 Storm Drainage Separation Project will separate street stormwater from combined sewers in the Callow Avenue basin, and direct flow to the previously constructed Callow Avenue improvements. Bids were opened for this project on January 7, 1999. Ten responsive bids for this project were received. The Iow bid was from Mid Mountain Contractors, Inc. at $921, 985.00, including sales tax. Upon City review of Mid Mountain Contractors bid, the unit price written in their Proposal for Bid Item No.21, "Storm Drain Manhole, Type 1", was inadvertently written as "One Thousand Eight Dollars" instead of "One Thousand Eight Hundred Dollars", as intended. The latter figure is consistent with the item total. The City considers this to be an insubstantial variance from the bidding requirements, with no advantage given over other bidders. The City has corrected the Proposal to reflect the intended amount of "One Thousand Eight Hundred Dollars". Funding for this project is provided from the Department of Ecology Centennial Clean Water Fund Loan and a Public Works Trust Fund Loan. The action before the City Council is approval of a contract with Mid Mountain Contractors for construction of the Callow Avenue Basin Priority 2 Storm Drainage Separation Project. Randy Witt, City Engineer, first, he reported that a lot of bids have been received for the Naval Avenue Slide Repair. He then provided a brief history of what has happened on Callow Avenue in the past, and what is going on now. Public comment - none. TAPE #1594 City Council Reg. Mtg. Minutes January 27, 1999 Page 4 of 5 Mr. Overson wanted reassurance of the performance for Mid Mountain Contractors for this price, since the bid was at least 30% lower than other bids received. Mr. Wilt responded that Mid Mountain Contractors are currently working on the 36" Water Main Project, and his Department is happy with the way that project is going so far. #1690 MISICIU (Montgomery/Overson) Motion to approve a contract for $921,985.00 with Mid Mountain Contractors, Inc. for the Callow Avenue Priority 2 Storm Drainage Separation Project, and authorize the Mayor to execute the same. 9B -WORKERS COMPENSATION CLAIMS ADMINISTRATION CONTRACT EXTENSION, #AB99-019 The City self-insures its workers' compensation obligations and utilizes the services of a third party claims administrator to make claim payments. In March 1996, the City selected Johnston & Culberson to administer its claims after a formal RFP process. The current contract with Johnston & Culberson expires January 31, 1999 and the City wishes to extend it for one additional year. The annual fee for this service will be $14,300 for the first 50 claims and $272 per claim for each claim after the first 50. Pecjcjy Lesser, Risk Manager, stated that Johnston & Culberson have been providing this service for over two years now. They deal with various staff, probably on a daily basis, and have been well received. Based on their performance, she recommends continuing the contract. Public comment - none. Mr. Overson asked her to share her reasons for supporting this agreement. MS. Lesser responded that Johnston & Culberson have been very conscientious in working with her and managing claims, paying attention to details, and appropriately responsive to City workers. Mr. Fart asked what disadvantages would arise from changing providers of this service? Ms. Lesser responded that a "disruptive process" could not be avoided, which would include take-over fees, additional fees for each claim currently open, the need for data to be converted, as well as a disruption in the workforce. #1865 M/S/C/U (Farr/Montgomery) Motion to approve the amendatory endorsement to the professional service agreement with Johnston and Culberson. 10A - ORDINANCE NO. 4646 (SECOND READING) NAMING THE NEW SR304 ROADWAY ALIGNMENT WEST OF FIRST STREET "CHARLESTON BOULEVARD", #AB99-015 Randy Witt, City Engineer explained that the word "east" was taken out of this new updated Ordinance, and left the end points as the definition of the location. TAPE #1594 City Council Reg. Mtg. Minutes January 27, 1999 Page 5 of 5 Public comment- none. Mr. Overson asked if Mr. Witt could use his "influence" to get the Sun to print the map along with any related articles in the future? Mrs. Arends agreed that the map was very helpful. She was curious about the effects of the recent wet weather we have been experiencing lately. Mr. Witt responded that the weather does not help, but they are keeping an eye on it. He believes that the area has now stabilized, and is not cause for immediate concern. They would like to get the repair work done as soon as possible. #1970 MISICIU (Arends! Olsen) Motion to pass Ordinance No. 4646 on second reading, establishing a new name for State Route 304 from First Street to the SR3 interchange as "Charleston Boulevard". With no further business, meeting adjourned at 6:15 P.M. Paula Johnston, Deputy City Clerk MIKE SHEPHERD, Council President City of Bremerton P J/MS/Is cc: Normal Distribution File Vault AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: FOR AGENDA OF: February !0, 1999 Motion to Allow Kitsap County ORIGINATING DEPT: Legal Prosecuting Attorney to recoup ORIGINATOR: Glenna Malanca, Indigent Appellate Costs City Attorney DATE SUBMITTED: February 5, 1999 2. CLEARANCES: (Comment on back if necessary) 3. EXHIBITS: i'~/~/1~/~~~~/q-'~~f~ Washington Draft Letter to State of Sle~ha ~alanca, City Attorney ENDORSEMENT [] INFORMATION [] / APPROVED BY COUNCIL PRESIDENT FO~/SIJBMITTAL: 4. SUMMAR~ STATF/~ENT AND REQUIREMENT FOR COIINCIL ACTION: The City Attorney requests that the City Council approve joining Kitsap County in its request for Reimbursement of Indigent Appellate Costs from the State. This request relates to the attached response letter from the Attorney Generals Office to Mr. Hauge. This action can be taken by motion. 8. RECOMMENDATION: Record Motion: Approve joining with the Kitsap County to request reimbursement of Indigent Appellate Costs from the State of Washington. 9. RESPONSIBLE OFFICIAL: E1FFORCEMENT OFFICIAL: EXPIRATION DATE: REVIEW DATE: 10. NOTICE OF ACTION PULLED [] TABLED [] APPROVED [] DISAPPROVED [] AMENDED [] DATE: COUNCIL DIRECTIVE: ~. AGENDA B~LL NO.: qq -- O~E (OVER) 2. C~M~M~IC~ COMM~I~S: 5. IMPACT OF NON-PASSAGE: The City would not recoup the costs for providing Indigent Appellate Defense. 6. IMPACT ON STAFFING, BUDGETS, FACILITIES, EQUIPMENT OR OTHER RESOURCES: None. 7. RESEARCH SOURCES: Motion to Ratify Settlement - 1/19/99 OFFICE OF THE KITSAP COUNTY PROSECUTING ATTORNEY Russell D. Hauge, Prosecuting Attorney i~,.~V 3 Civil Division Kitsap County Courthouse, 614 Division Street, MS-35A (360) 337-4992 Port Orchard, Washington 98366-4676 Fax (360) 337-7083 November 24, 1998 Ms. Glenna Malanca Bremerton City Attomey 239Fourth Street Bremerton, WA 98337 RE: RALJ Indigent Appellate Costs Claim Our File No. 98-40-0040-L Dear Ms. Malanca: Enclosed with this letter you will please find a draft letter that we propose be directed to the Washington State Office of Public Defense and the Washington Risk Management Office representing the combined claims of Kitsap County and the City of Bremerton for reimbursement of indigent appellate costs. I would ask that you pay particular attention to our formulation of the expenses incurred by the City of Bremerton on page 4 of the enclosed draft. Also enclosed is a copy of an attorney general's informal opinion letter dated December 24, 1996 and directed to Russell Hauge in regard to this issue. I would ask that you seek approval of the legislative authority for the City of Bremerton that the draft letter with enclosures be approved for service upon the Washington State Office of Public Defense and Risk Management in the form set out in the November 23 draft. Once I have your assurance that this approval has been given, the letter will be reprinted with the current date and forwarded to the relevant state offices. Should you have any questions or concerns, please feel free to call upon me at any time, and thank you in advance for your kind attention. Very truly yours, RUSSELL D. HAUGE ~ting Attorney Kevin M. Howell Deputy Prosecuting Attorney KMH:dam Enclosures cc: Russell D. Hauge OFFICE OF THE KITSAP COUNTY PRO,SECUTING ATTORNEY Russell D. Hauge, Prosecuting Attorney Criminal & Administrative Divisions Kitsap County Courthouse, 614 Division Street, MS-35 (360) 337-7174 Port Orchard, Washington 98366-4681 Fax (360) 337-4949 November 23, 1998 Joanne Moore, Director Betty Reed, Administrator Office of Public Defense Risk Management Office P.O. Box 40957 P.O. Box 41027 Olympia, WA 98504-0957 Olympia, WA 98504-1027, RE: REIMBURSEME~ OF INDIGENT APPELLATE COSTS Dear Ms. Moore and Ms. Reed: Kitsap County and the City of Bremerton hereby demand that the Office of Public Defense and/or the State of Washington reimburse the monies expended to secure the constitutional right of appeal for indigent misdemeanants, which Kitsap County and the City of Bremerton have paid since 1980. As outlined below, these costs are solely the responsibility of the State of Washington and should not have been shouldered by either Kitsap County or the City ofBremerton. Kitsap County and the City of Bremerton are prepared to file actions in the Washington Supreme Court requesting a writ of mandamus and declaratory judgment after the tolling period for our claim lapses. In the interim, Kitsap County and the City of Bremerton are willing to resolve this claim for unpaid indigent appellate costs if the State of Washington agrees to the following terms: (1) the Office of Public Defense and/or the State of Washington agrees to reimburse Kitsap County and the City of Bremerton for all expenses incurred to secure the constitutional right of appeal for indigent misdemeanants which Kitsap County and the City of Bremerton have paid in 1996, 1997, and 1998; and (2) the Office of Public Defense and/or the State of Washington agrees to pay all future expenses incurred to secure the constitutional right of appeal for indigent misdemeanants. If the Office of Public Defense and/or the State of Washington is unwilling to agree to these terms, then Kitsap County and the City of Bremerton will be seeking all funds we have expended to secure the constitutional right of appeal for indigent misdemeanants for the three years preceding the filing of the lawsuit. The State of Washington is mandated by statute to pay the expenses associated with securing an indigent's constitutional right to appeal. RCW 4.88.330 provides that: When a party has been judicially determined to have a constitutional right to obtain a review and to be unable by reason of poverty to procure counsel to perfect the review all costs necessarily incident to the proper consideration of the review including preparation of the record, reasonable fees for court appointed Joanne Moore, Director and Betty Reed, Administrator November 23, 1998 Page 2 counsel to be determined by the supreme court, and actual travel expenses of counsel for appearance in the supreme court or court of appeals, shall be paid by the state. Upon satisfaction of requirements established by supreme court rules and submission of appropriate vouchers to the clerk of the supreme court, payment shall be made from funds specifically appropriated by the legislature for that purpose. RCW 4.88.330. This version of RCW 4.88.330, unlike prior versions, contains no language that restricts the record preparation costs and court appointed counsel costs to appeals that are filed in the court of appeals and/or supreme court. The complete legislative history of RCW 4.88.330 has been succinctly summarized by the Washington Supreme Court in State v. Durham, 87 Wn.2d 206, 550 P.2d 685 (1976), as follows: While the class of indigent litigants who have benefited by such compensation statutes has been expanded through statutory revisions, the preconditions to compensation have remained the same. Laws of 1965, ch. 133, § 2, provided for payment on behalf of an indigent criminal defendant of "all costs necessarily incident to the proper consideration of the appeal by the supreme court". In 1970, the class of beneficiaries was expanded to include indigent juveniles in any case determining such juvenile to be a delinquent or incorrigible child. Laws of 1970, 1st Ex. Sess., ch. 31. In 1972, petitioners for writs of habeas corpus who have been judicially determined to have a constitutional .right to a transcript and review were included. Laws of 1972, 1st Ex. Sess., ch. 111. The most recent provisions expand the potential class of beneficiaries to a party who has been judicially determined to have a constitutional right to a transcript or to obtain review. Laws of 1975, 1st Ex. Sess., ch. 261. See footnote 1. Durham, 87 Wn.2d at 208 n.2. Individuals charged with crimes in the Kitsap County District Court and in the Bremerton Municipal Court have a constitutional right to appeal their convictions to the Kitsap County Superior Court. See Wash. Const. art. I, § 22. Prior to 1980 these appeals were by trial de novo. See generally Seattle v. Hessler, 98 Wn.2d 73, 76, 653 P.2d 631 (1982). An individual who was convicted following the superior court trial de novo had an appeal, as of right, to the appellate courts. See Alter v. Issaquah District Court, 35 Wn. App. 590, 668 P.2d 609 (1983), quoting former RAP 2.2(c). The costs associated with such appeals were borne by the State of Washington if the individual was unable by reason of poverty to procure counsel or to perfect the record. In 1980, the Legislature altered the method of appeal to an appeal on the record. See Seattle v. Hessler, 98 Wn. 2d at 76. Such appeals require the appointment of counsel, the Joanne Moore, Director and Betty Reed, Administrator November 23, 1998 Page 3 preparation of the lower court record, and the preparation of transcripts. See, e.g., Title 6 Rules for Appeals of Decisions of Courts of Limited Jurisdiction ("RALJ"); RALJ 11.7(b) and (d). If the misdemeanant is indigent, these items must be provided at public expense. See generally Douglas v. California, 372 U.S. 353, 9 L. Ed. 2d 811, 83 S. Ct. 814 (1963); Wash. Const. art. I, § 22; Laws 1995, ch. 275, § 1; RCW 10.73.150(1). The plain language of RCW 4.88.330 contains a commitment by the State of Washington to bear the cost of preparing the record and of counsel if the misdemeanant is indigent. While Kitsap County and the City of Bremerton appreciate the December 24, 1996, informal opinion regarding the State of Washington's obligation to pay for the cost of appeals by indigent parties in RALJ appeals that was provided by Senior Assistant Attorney.General lames K. Pharris, we believe his analysis is flawed due to his failure to consider the 1980 change from trial de novo to appeals upon the record. In the enclosed December 24, 1996, informal opinion Mr. Pharfis fails to note that between 1965 when RCW 4.88.330 was first adopted, and 1975 when RCW 4.88.330 was last amended, the only appeals that required the preparation of a record, where appeals from the superior court to the supreme court or the court of appeals. Such appeals included a misdemeanant's appeal as a matter of right from the superior court trial de novo. See Alter v. Issaquah District Court, 35 Wn. App. 590, 668 P.2d 609 (1983), quoting former RAP 2.2(c). In other words, the state budget bore the expense for all appeals conducted on paper records. The Legislature is presumed to know that the State of Washington bore the cost of all appeals conducted upon written records when it replaced trial de novo with the RALJ system in 1980. The Legislature's decision to not amend RCW 4.88.330 so as to restrict state payment for the costs of transcripts, clerk's papers, and counsel to aPpeals filed in the supreme court and the court of appeals, indicates the Legislature's continued commitment to pay these expenses out of the state budget. Enforcement of criminal laws are mandating an ever increasing portion of the revenues received by Kitsap County and the City of Bremerton. As the Legislature passes ever-tougher DUI and domestic violence laws, the number of appeals filed by misdemeanants are increasing exponentially as demonstrated by the following table: 10 criminal - 2 criminal The cost of perfecting the record and of counsel in each of these cases is not trivial. Joanne Moore, Director and Betty Reed, Administrator November 23, 1998 Page 4 The cost of perfecting the record and of counsel in each of these cases is not trivial. Preparation of the clerk's papers costs $40.00 per case. See RCW 3.62.060(7). The filing fee is $110.00 per case. The cost of providing counsel is $597.00 per case in Kitsap County and $200.00 per case in the City of Bremerton. Finally, the cost of transcribing the audio record can easily exceed $1,000.00 in any given case. The following table details the public funds that were expended in 1996, 1997, and 1998, so as to provide indigent persons with the tools necessary for an effective RALI appeal. RCW 36.18.020(18) $3520.00 $1320.00 $4070.00 _ Record Preparation Fee $960.00 $400.00 $1080.00 $320~0~ ',t- \~.'0~ · $400.00 RCW 3.62.060(7) 0.~x' Transcripts $3492.00 $1446.00 $6401.50 ~t ~ 1.00 $2448.00 Court Appointed Counsel $14328.00 $5970.00 $16119.00 $1600.0~ $400.00 $2000.00 Fees / TOTAL $22300.00 $9136.00 $27670.50 ~1'920.00 $681.00 $4848.00 Kitsap County and the City of Bremerton must conserve our limited resources for those services we are required to provide. Limited local tax dollars will no longer be used to provide services that the State of Washington is statutorily required to provide. While Kitsap Coun~ and the City of Bremerton will continue to pay invoices submitted by the various vendors who provide the services to secure the indigent misdemeanants' constitutional fight to appeal during the pendency of this claim so as not to violate the indigent misdemeanants' right to a timely appeal, we fully expect the State of Washington to reimburse us for these expenses and to assume the responsibility for processing future claims. Very truly yours, RUSSELL D. HAUGE Prosecuting Attorney Chrisffne O. Gre§oire ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE · PO Box 40100 · Olympia WA 98504-0100 December 24, 1996 The Honorable Russell Hauge Kit.sap County Prosecuting Attorney Kitsap County Courthouse 614 Division Street, MS-35 , Port Orchard, Washington 98366-7148 Dear Prosecutor I-huge: By letter previously acknowledged, you have asked for an opinion on a question ! have paraphrased as follows: Does RCW 4.88.330 authorize or obligate the state to pay for the cost of appeals by indigent parties to superior court of criminal case decisions made by courts o£ limited jurisdiction (municipal or district courts)? For the reasons discussed in the analysis below, ! answer your question in the negative. ANALYSIS RCW 4.88.330 provides for state payment of certain costs associated with appellate review of cases involving indigent parties. Your question is whether the statute covers cases reviewed by superior courts as an exercise of their appellate jurisdiction.~ In its current version, RCW 4.88.330 provides as follows: When a party has been judicially determined to have a constitutional right to obtain a review and to be unable by reason of poverty to procure counsel to t The superior courts, by both constitutional and statutory provisions, have such appellate jurisdiction in cases arising in courts of limited jurisdiction as the Legislature may prescribe. Const. art. IV, § 6; RCW 2.08.020. Statutes have conferred both criminal and civil appellate jurisdiction on the superior courts in a variety of circumstances. For example, RCW 10.10.010 authorizes "lo]very person convicted before a district judge of any offense..." to appeal from the judgment "as provided by court rules." Rule 2.3 of the Rules for Appeal of Decisions of Courts of Limited Iurisdiction (RALJ) provides for appeal to the superior courts. ATTORNEY GENERAL OF WASt--IIb,FGTON The Honorable Russell Hauge - 2 - December 24, 1996 perfect the review all costs necessarily incident to the proper consideration of the review including preparation of the record, reasonable fees for court appointed counsel to be determined by the supreme court, and actual travel expenses of counsel for appearance in the supreme court or court of appeals, shall be paid by the sate. Upon satisfaction of requirements established by supreme court rules and submission of appropriate vouchers to the clerk of the supreme court, payment shall be made from funds specifically appropriated by the legislature for that purpose. As your letter indicates, the first p,a.rt of the section speaks rather generally of a "constitutional right to obtain a review." Your letter also points out that such cases as. Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963) established that, under the federal constitution, persons convicted of crimes in courts of limited jurisdiction have a constitutional right to appeal. The state constitution confers such a right explicitly in article I, section 22. Therefore, you inquire, since appellate review conducted in superior court is often in satisfaction of constitutional requirements, should RCW 4.88.330 be interpreted to obligate the sate to pay for the costs of such review? While the opening language of the current version of RCW 4.88.330 might support such a reading, a contrary interpretation is dictated by: (1) the rest of the statute itself; (2) the legislative history of this section; and (3) its consistent administrative construction. All of these indicate that the statute in question was intended to cover only cases in the Court of Appeals or the Washington State Supreme Court (the Supreme Court). In interpreting statutory language, courts look to statutes as a whole and attempt to give meaning to all the language in an enactment, rather than focusing on individual words or phrases. See, e.g., State ex tel. Royal v. Board of Yakima County Com'rs., 123 Wn.2d 451, 869 P.2d 56 (1994); ITT Rayonier, Inc. v. Dalman, 122 Wn.2d 801,863 P.2d 64 (1993); Pope v. University of Washington, 121 Wn.2d 479, 852 P.2d 1055 (certiorari denied 114 S. Ct. 1061) (1993). Thus, the opening language of RCW 4.88.330 must be read together with other phrases in the same section. Later in the first sentence of the statute, one of the items listed by the Legislature as subject to payment by the state is "actual travel expenses of counsel for appearance in the supreme court or court of appeals[.]" (Emphasis added.) This language is an indication that the statute was intended to cover only appellate reviews conducted in the Supreme Court or the Court of Appeals, and not superior court appellate review.2 2 I recognize that this language is capable of another interpretation--that attorney travel expense is reimbursable only for appearance in the Supreme Court or the Court of Appeals. This reading would not be inconsistent with the notion that other costs and attorney fees could still be paid by the sate for superior court appeals. Furthermore, since superior court appeals are almost always conducted in the county where the trial was conducted (see RALI 2.2), the AT'PORNEY GENERAL OF WASHIBIGTON The Honorable Russell Hauge - 3 - December 24, 1996 Another and perhaps clearer indication of legislation intent is the reference in two places to the Supreme Court action in setting fees and determining how fees and costs should be paid. The first sentence of RCW 4.88.330 includes "reasonable fees for court appointed counsel to be determined by the supreme court[.]" (Emphasis added.) The second sentence provides that [u]pon satisfaction of requirements established by supreme court rules and submission Of appropriate vouchers to the clerk of the supreme court, payment shall be made from funds specifically appropriated by the legislature for that purpose. (Emphasis added.) The language in question 'has been implemented in the Rules of Appellate Procedure .(RAP). Title 15 of RAP is specifically about indigent appeals. RAP 15.2 provides for a motion in "the trial court" for an order of indigency, an initial determination by the superior court, and final action by the Supreme Court establishing whether a party will be entitled to indigent status. RAP 15.4 describes how indigent parties must file claims. RAP 15.5 authorizes the director of the Office of Public Defense to determine claims for expense. HoWever, RAP applies only to proceedings in the Supreme Court and the Court of Appeals. RAP 1.1. By contrast, .appeals from courts of limited jurisdiction to the superior courts are governed, not by RAP, but by RAI. J, as noted earlier. RAIJ contains no equivalent to Title 15 of RAP, and there are no RALI provisions, which could be read as implementing RCW 4.88.330 or otherwise authorizing parties or attorneys in RALI proceedings to claim their costs and expenses from the Supreme Court. The absence of such provisions from RALI leads to either of two conclusions: (1) the Supreme Court believed that RCW 4.88.330 covered only appeals in the Court of Appeals or the Supreme Court, and reflected that in its rules, or (2) the Supreme Court simply chose not to implement RCW 4.88.330 as to cases governed by RAIZ rather than RAP) At the very least, then, claims for state payment of superior court appellate costs would fail for lack of implementing court rules as required by the statute itself. Legislature, by this line of reasoning, might have assumed that attorneys would not have to travel far for such appeals and thus should not be reimbursed for their expenses. The other arguments discussed, below, however, convince me that the Legislature never intended that RCW 4.88.330 apply to any superior court appellate reviews. ~ My cursory review of the comments on RALI and RAP revealed no discussions indicating that the Supreme Court thought it had the option of applying the indigent defense rules to appeals in superior court. AT'F-ORNEY GENERAL OF WASHINGTON The Honorable Russell Hauge - 4 - December 24, 1996 The history of what is now RCW 4.88.330 confirms that this statute was never intended to cover appellate review at the superior court level. The statute dates originally to Laws of 1965, ch. 133, § 2, and originally read as follows: When a judge of the superior court, in the exercise of his discretion authorizes expenditure of funds on behalf of an individual criminal defendant who is unable by reason of poverty to procure counsel tO perfect a review by the ~upreme court, and where the court m-appoints counsel representing the defendant at the trial or designates new counsel to represent the defendant in securing this review, all costs necessarily incident to the proper .consideration of the appeal by the supreme. court including preparation of the record, appropriate counsel fees to be determined by the supreme court, and actual travel expenses of counsel for appearance in the supreme Court, shall be paid by the state, upon satisfaction of requirements established by supreme court rules and submission of appropriate vouchers to the clerk of the supreme court, from funds specifically appropriat, ed by the legislature for that purpose. (Emphasis added.) The 1965 Legislature directed that this language be codified in RCW 10.01, and it spent its first ten years as RCW 10.01.112. In its original version, this law applied exclusively to criminal appeals, and exclusively to review in the Supreme Court. It is also worth noting that the second half of the statute, beginning with the language "including preparation of the record," was substantially the same in 1965 as it is today. Three subsequent Legislatures have amended this language. The first amendment, in Laws of 1970 1st Ex. Sess., ch. 31, § 2, added language permitting payment of costs for juveniles "in any case determining such juvenile to be a delinquent or incorrigible child under RCW 13.04.010[.]" All of the language added in 1970 was later removed again. More significantly, the 1972 Legislature again amended the statute in Laws of 1972, 1st Ex. Sess., ch. 111, § 2. The 1972 legislation made two substantive changes. First, the coverage of the statute was again expanded, this. time to include petitioners for the writ of habeas corpus. Second, the statute was revised to reflect the creation of the state Court of Appeals in 1971. This latter change was reflected by an explicit mention of the Court of Appeals in the phrase "actual travel expenses of counsel for appearance in the supreme court or-court of appeals . . ." (added language emphasized) and by the elimination of the phrase "by the supreme court" from the phrase "unable by reason of poverty to procure counsel to perfect.. · the review by the supreme court .... "The opening language of the section, referring to exercise of discretion by a judge of the superior court, was removed, and replaced with the phrase "has been judicially determined to have a constitutional right to obtain a review .... " The purpose of this change was evidently to (1) apply the statute in case of any judicial determination of fight to review, whether by the superior court or otherwise and (2) to emphasize that the Legislature would only pay for constitutionally required review. ATTORNEY GENERAL OF WASHINGTON The Honorable Russell Hauge - 5 - December 24, 1996 The 1972 amendments eliminated much of the language which made it absolutely clear that the statute was intended to cover only Supreme Court review of superior court judgments, because explicit references to superior court and the Supreme Court were removed. The evident purpose of these changes, however, was to reflect the creation of the Court of Appeals and to broaden the statute to allow for the additional layer of appellate review. Nothing in the statute appears to have been intended to expand coverage to superior court appeals of decisions of courts of limited jurisdiction, however.4 The final change was made in Laws of 1975, 1st Ex. Sess., ch. 261, § 2. The 1975 Legislature apparently gave up on ta-ying to ,categorize the cases in which appellate cost~ might be constitutionally allowed, and eliminated the list consisting of "an individual criminal defendant, a juvenile in any case determining..., or a petitioner for a writ of habeas corpus · . ." in favor of the simple phrase "a party." With this change, .state payment is potentially available to any litigant (civil or criminal) determined to have a constitutional right to review. To underscore this broadening, the 1975 Legislature instructed that (former) RCW 10.01.112 be recodified in RCW 4.88. (Title 10 is about criminal procedure, while Title 4 is the codification of cigil procedure laws.) The legislative history of the 1975 amendments provides us with a glimpse of legislative intent. The House lournal on consideration of ESB 2226, the bill which was enacted into what is now RCW 4.88.330, includes two interesting colloquies. Representative Eikenberry (later Attorney General) inquired whether the costs granted by the superior court would be reviewed or authorized by the county commissioners, or a county legislative body. In response, the floor manager of the bill, Representative Rick Smith, stated: That is the situation in superior court, but this bill only deals with the appellate court and the fees are determined by the clerk. I believe the clerk of the Supreme Court approves the fees, or the Supreme Court does, for both the court of appeals and the Supreme Court. House Journal, 44th Legislature (1975), at 1844 (emphasis added). During the same debate, Representative Amen inquired of Representative Smith: 4 The legislative history available from 1972 is scant, an~t I found nothing in it directly relevant to our discussion. Perhaps most significant is that the Supreme Court did not, after the 1972 change, begin to entertain claims for reimbursement of costs of superior court appeals from courts of limited jurisdiction. Thus, there seems to have been no contemporaneous idea that the 1972 amendments accomplished such an expansion of the state's financial support of indigent appeals. ATTORNEY GENERAL OF WASHINGTON The Honorable Russell Hauge - 6 - December 24, 1996 You said this only applies to appellate courts, how has this been paid prior to this? Is this a new program? Id. at 1845. Representativg Smith repl!ed: No, this is not a new program. Representative Eikenberry is in error when he said this is passed on to costs of local government. It doesn't have anything to do with local government. It's the api?ellate court; we have done this in the past. Moneys have always been appropriated to allow for this. The impact of this bill is only $14,000. It has always been in the budget before and I'm sure it's in the budget now. I'm sure it's in the Conference Committee Report. Id. at 1845. From this discussion, it is clear that the House understood (1) that the bill applied only to the appellate courts and (2) that the bill did not represent a significant expansion of the coverage of the law or a significant increase in state expenditures. The history of the statute, taken all together, leads to the conclusion that the Legislature, while expanding the types of cases in which the state would pay indigent appellate costs, and expanding the law to include the Court of Appeals as well as the Supreme Court, did not intend for either the 1972 or 1975 changes to cover appeals hem.rd in the superior courts. This reading is consistent with the fact, noted earlier, that the Supreme Court has by rule provided only for indigent appeals in the Supreme Court and the Court of Appeals, and that the legislative appropriation has been administered to pay only costs incurred in appeals in those courts. As you noted in your letter, the Supreme Court has interpreted the coverage of RCW 4.88.330, though not in the precise context of the issue you raise. In State v. Durham, 87 Wn.2d 206, 550 P.2d 685 (1976), the court rejected an argument that the funds provided pursuant to RCW 4.88.330 could be used for the costs of an evidentiary hear/ng conducted by the superior court pursuant to Criminal Rule 7.7Co). The specific argument made by Durham, and rejected by the Supreme Court, was that in conducting such an evidentiary hearing, the superior court functioned as an arm or agent of the appellate courts? The court cited part of the legislative history of the 1975 amendments discussed above, found that the state funds were intended only for matters relating to appellate review, and determined that the costs in question should be borne by the counties, and not the state. 5 It seems significant that Durham, litigated about the time of the 1975 amendments and when the 1972 amendments were relatively recent, did not advance any argument based on the alleged availability of state indigent appeal funds for the exercise of the superior court's own appellate jurisdiction. ATTORNEY GENERAL OF WASH12wGTON The Honorable Russell Hauge - 7 - December 24, 1996 To summarize, any doubtful language in RCW 4.88.330 can be explained by the history of the statute, and the narrower reading of its coverage is conf'm'ned by its legislative history and its administrative construction. At the superior court level then, whether the superior court is exercising original or appellate jurisdiction, the costs of indigent parties entitled to reimbursement are the responsibility of local rather than state government.6 I hope the foregoing will be useful to you. It represents my own research and considered judgment, but is not a formal opinion of the Attorney General's Office. ES K. PHARRIS ~"'-.~..,.l~hior Assistant Attorney General 060) 664-3027 JK.P:jl 6 You refer in your request to the anticipated effects of Laws of 1996, ch. 308, which requires cities and towns to assume certain costs associated with the prosecution of crimes referred to the courts from their respective law enforcement agencies. You have not asked, and I have not considered, whether the costs associated with indigent appeals to superior court are chargeable to the cities and towns under the new 1996 legislation.