AN ACT Relating to criminal defense; amending RCW 2.32.240, 4.88.330, and 36.26.070; adding a new chapter to Title 2 RCW; adding a new chapter to Title 10 RCW; making an appropriation; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. In order to implement the constitutional guarantee of counsel and to insure the effective and efficient delivery of the indigent appellate services now funded by the state of Washington, the office of the public defender is created.

NEW SECTION. Sec. 2. The supreme court shall compile a list of three persons qualified for the director of the office of the public defender. Qualifications shall include admission to the practice of law in this state for at least five years, experience in the representation of persons accused of crime, and proven managerial or supervisory experience. The supreme court shall submit this list to the governor of the state, who shall select the director from persons on the list, with the consent of the senate. The term of the director shall be for five years, and the director shall be removable by the governor only for good cause shown. The director shall be paid a salary as fixed by the governor under RCW 43.03.040.

NEW SECTION. Sec. 3. (1) The director shall, with the assistance of the advisory committee created in section 4 of this act, review the current system for providing appellate representation to indigent persons in criminal cases, cases involving a potential termination of parental rights, civil commitment proceedings, and cases involving a disposition in a juvenile offense proceeding. The director shall, on or before January 1, 1988, report to the judiciary committees of the senate and house of representatives with a plan for an effective and efficient program for delivering indigent defense services state-wide in the court of appeals and supreme court in criminal cases, cases involving a potential termination of parental rights, civil commitment proceedings, and cases involving a disposition in a juvenile offense proceeding. The plan shall include: Guidelines for determining who should be eligible to receive legal services under the program; recommendations for a manner of financing the program; and recommendations for mandatory pro bono publico participation by private attorneys. After taking into consideration the recommendations of the judiciary committees of the senate and house of representatives, the supreme court shall implement the transfer of administration for the state-wide plan to deliver indigent appellate defense services to the office of the public defender.

(2) The director shall be responsible for the administration of the program developed pursuant to subsection (1) of this section. The director shall submit a biennial budget for state appellate defense and shall establish administrative procedures, standards, and guidelines for the program.

(3) The director shall, with the assistance of the advisory committee created in section 4 of this act, review the current system for providing trial representation to indigent persons in criminal cases, cases involving a potential termination of parental rights, civil commitment proceedings, and cases involving a disposition in a juvenile offense proceeding. The director shall, on or before October 1, 1988, make recommendations to the judiciary committees of the senate and house of representatives for a state trial defender program. The report shall include, but need not be limited to:

(a) Recommendations for a plan to provide legal services at the trial level to all indigent persons in the state in criminal cases, cases involving a termination of parental rights, and cases involving a disposition in a juvenile offense proceeding. Consideration shall be given to whether participation in the plan should be at the discretion of local governmental entities;

(b) Guidelines for determining who should be eligible to receive legal services under the program;

(c) Standards and guidelines for determining appropriate levels of experience and caseloads for attorneys under the program;

(d) Recommendations for a plan to train and supervise attorneys under the program;

(e) Recommendations on appropriate levels of compensation and support staff for attorneys under the program;

(f) Recommendations for a manner of financing the program;

(g) Recommendations for mandatory pro bono publico participation by private attorneys.

NEW SECTION. Sec. 4. To assist the director of the office of the public defender in carrying out the duties under section 3 (1) and (3) of this act, there is created an advisory committee consisting of the following members:

(1) One member appointed by the governor, who shall serve as chair of the committee;

(2) One member appointed by the Washington state association of counties;

(3) One member appointed by the association of Washington cities;

(4) One member appointed by the Washington state bar association;

(5) One member appointed by the Washington appellate defender association, to serve until January 1, 1988;

(6) One member appointed by a recognized trial defender association;

(7) One member appointed by the Washington association of prosecuting attorneys;

(8) One member appointed by the chief justice of the supreme court;

(9) One member appointed by the presiding chief judge of the court of appeals, to serve until January 1, 1988;

(10) One member appointed by the Washington association of superior court judges;

(11) One member appointed by the Washington state magistrates' association;

(12) Two members appointed by the president of the senate who shall not be members of the same political party; and

(13) Two members appointed by the speaker of the house of representatives who shall not be members of the same political party.

Members of the advisory committee shall serve without compensation but shall be reimbursed for travel expenses under RCW 43.03.050 and 43.03.060.

NEW SECTION. Sec. 5. The director of the office of the public defender may employ one full-time staff attorney and one full-time administrative assistant for the purpose of carrying out the activities set out in section 3 of this act. Such employment shall be exempt from state civil service under chapter 41.06 RCW.

NEW SECTION. Sec. 6. If a person in a criminal case, a case involving a potential termination of parental rights, a civil commitment proceeding, or a case involving a disposition in a juvenile offense proceeding claims that he or she is indigent, the trial court shall determine whether or not the accused is indigent pursuant to the standards set forth in this chapter based on an affidavit of indigency filed by the accused under oath and other competent evidence as determined by the court. Any information given by the accused pursuant to this section or sections 7 through 9 of this act shall be confidential and shall not be available for use by the prosecution in the pending case in chief.

NEW SECTION. Sec. 7. (1) In making its finding pursuant to section 6 of this act, the court shall determine whether the accused lives in a household that is at or below one hundred twenty-five percent of the federally established poverty level. The term "household" means the accused, his or her spouse (unless the spouse was the victim of the offense or offenses allegedly committed by the accused), and any dependents of the accused, who are living together as one economic unit. If the accused has an annual income that is at or below one hundred twenty-five percent of the federally established poverty level, and does not waive his or her right to counsel or retain counsel on his or her behalf, he or she shall be presumed eligible for the appointment of counsel. This presumption shall be rebuttable, and in instances where the court finds that a more thorough examination of the financial resources of the accused is necessary, such examination shall be undertaken pursuant to section 8 of this act.

(2) For the purpose of determining whether the accused has an annual income that is at or below one hundred twenty-five percent of the federally established poverty level, the income and assets of the accused's spouse, if any, who is a member of the accused's household, shall be considered unless the spouse was the victim of the offense or offenses allegedly committed by the accused.

(3) The determination of the annual income of the accused shall include, but not be limited to: All money, wages, and salaries of the accused before any deductions, less twenty percent; all net profits of the accused from self-employed enterprises; all gross income derived by the accused from rental property minus the cost of doing business; allowances and stipends for food, clothing, and shelter excluding food stamps; payments received from federally aided public assistance programs, general assistance, or other assistance programs based on need; pensions; old-age, veterans, disability, or survivor's benefits; regular or recurring support from absent family members or other persons; trusts, dividends, interests, royalties; and scholarships or other educational benefits in excess of tuition and mandatory school fees.

NEW SECTION. Sec. 8. (1) If the accused claims to be indigent and is not presumptively eligible under section 7 of this act, a thorough examination of the financial resources of the accused shall be made.

(2) In making its examination pursuant to subsection (1) of this section, the court shall consider: The income of the accused as determined pursuant to section 7(3) of this act; all liquid assets of the accused (including but not limited to cash on hand, checking and savings accounts, stocks, bonds, and certificates of deposits); any real estate owned by the accused with regard to the amounts which could be raised by a loan on the property; any exceptional expenses of the accused and his or her spouse and dependents (including but not limited to costs for medical care, family support obligations, and child-care payments) which would, in all probability, prohibit him or her from being able to secure private counsel; the anticipated length and complexity of the proceedings and the usual and customary charges of an attorney in the community for rendering services; and any other circumstances presented to the court which are relevant to the issue of indigency. The appointment of counsel shall not be denied to the accused because the accused's friends or relatives (other than a spouse who was not the victim of the offense or offenses allegedly committed by the accused) have resources adequate to retain counsel or because the person has posted or is capable of posting bond.

(3)(a) The accused shall be presumed ineligible for the appointment of counsel if he or she owns more than one motor vehicle or has liquid assets (as determined under subsection (2) of this section) in excess of five thousand dollars.

(b) Where the accused is presumptively ineligible for the appointment of counsel, the court may, in exceptional circumstances and where the ends of justice so require, appoint an attorney to represent the accused. However, in making such appointments, the court shall state in writing its reasons for doing so. The written statement of the court shall be included in the permanent record of the case.

NEW SECTION. Sec. 9. (1) When the court makes a finding that the accused is entitled to the appointment of counsel pursuant to sections 7 and 8 of this act, the court shall also determine whether the accused has the ability to pay part of the cost of counsel. When the court finds that the accused is able to pay for part of the cost of counsel, assignment of such counsel shall be conditioned on part payment by the accused pursuant to an established method of collection unless the court states in writing its reasons for failing to require part payment. The written statement of the court shall be included in the permanent record of the case.

(2) The court may modify any order entered pursuant to this section or sections 6 through 8 of this act in a hearing based upon a showing of changed circumstances upon the part of the accused. The accused and counsel for the accused who has been granted an order of indigency shall bring to the attention of the court any significant improvement in the financial condition of the accused.

(3) The court may, in a hearing, require a convicted defendant to pay as costs, pursuant to the provisions of chapters 10.01, 10.64, and 10.82 RCW, such costs of counsel as the defendant is or will be able to pay. Any such order shall be in writing and shall be included in the permanent record of the case.

Sec. 10. Section 5, chapter 126, Laws of 1913 as last amended by section 2, chapter 3, Laws of 1983 and RCW 2.32.240 are each amended to read as follows:

(1) When a record has been taken in any cause as provided in RCW 2.32.180 through 2.32.310, if the court, or either party to the suit or action, or his attorney, request a transcript, the official reporter and clerk of the court shall make, or cause to be made, with reasonable diligence, full and accurate transcript of the testimony and other proceedings, which shall, when certified to as hereinafter provided, be filed with the clerk of the court where such trial is had for the use of the court or parties to the action. The fees of the reporter and clerk of the court for making such transcript shall be fixed in accordance with costs as allowed in cost bills in civil cases by the supreme court of the state of Washington, and when such transcript is ordered by any party to any suit or action, said fee shall be paid forthwith by the party ordering the same, and in all cases where a transcript is made as provided for under the provisions of RCW 2.32.180 through 2.32.310 the cost thereof shall be taxable as costs in the case, and shall be so taxed as other costs in the case are taxed: PROVIDED, That when, from and after December 20, 1973, a party has been judicially determined to have a constitutional right to a transcript and to be unable by reason of poverty to pay for such transcript, the court may order said transcript to be made by the official reporter, which transcript fee therefor shall be paid by the state upon submission of appropriate vouchers to the clerk of the supreme court. After establishment of an appellate defender program pursuant to section 3 of this 1987 act, payment shall be made in the amount and manner prescribed by the director of the office of the public defender.

Sec. 11. Section 2, chapter 261, Laws of 1975 1st ex. sess. and RCW 4.88.330 are each amended to read as follows:

(1) When a party has been judicially determined to have a constitutional right to obtain a review and to be unable by reason of poverty as determined pursuant to sections 6 through 9 of this 1987 act 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 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.

(2) After establishment of an appellate defender program pursuant to section 3 of this 1987 act, payment shall be made in the amount and manner prescribed by the director of the office of the public defender.

Sec. 12. Section 7, chapter 94, Laws of 1969 as amended by section 18, chapter 76, Laws of 1984 and RCW 36.26.070 are each amended to read as follows:

The public defender must represent, without charge to any accused, every indigent person who is or has been arrested or charged with a crime for which court appointed counsel for indigent defendants is required either under the Constitution of the United States or under the Constitution and laws of the state of Washington:

(1) If such arrested person or accused, having been apprised of his constitutional and statutory rights to counsel, requests the appointment of counsel to represent him; and

(2) If a court, on its own motion or otherwise, does not appoint counsel to represent the accused; and

(3) Unless the arrested person or accused, having been apprised of his right to counsel in open court, affirmatively rejects or intelligently repudiates his constitutional and statutory rights to be represented by counsel.

As used in this section, "indigent" shall be construed as provided in chapter 10.-- !sc ,1RCW (sections 6 through 9 of this 1987 act).

NEW SECTION. Sec. 13. Sections 1 through 5 of this act shall constitute a new chapter in Title 2 RCW, and sections 6 through 9 of this act shall constitute a new chapter in Title 10 RCW.

NEW SECTION. Sec. 14. The sum of three hundred forty-eight thousand dollars, or so much thereof as may be necessary, is appropriated from the general fund to the office of the public defender for the biennium ending June 30, 1989, to carry out the purposes of this act.

NEW SECTION. Sec. 15. This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect immediately.