WSR 15-11-031

RULES OF COURT

[May 12, 2015]

The Judicial Information System Committee (JISC), having recommended the adoption of the proposed amendment to IRLJ 6.2 and the raising of the assessment authorized by RCW 2.68.040 (1)(a), and JISC, local governments, and the Office of Public Defense (OPD) having recommended an inflation adjustment to the base penalty schedule, as authorized by RCW 46.63.110(3), with support from the Superior Court Judges' Association, District and Municipal Court Judges' Association, Association of Washington Cities, and the Washington State Association of Counties, and the Court having determined that the proposed increases will aid in the prompt and orderly administration of justice, and further determined that an emergency exists which necessitates an early adoption;

Now, therefore, it is hereby

(a) That the assessment, as authorized by RCW 2.68.020 (1)(a), is increased from $17 to $23;

(b) That the infraction base penalty schedule is increased by $6 for inflation, as authorized by RCW 46.63.110(3);

(c) That the amendment as shown below is adopted;

(d) That pursuant to the emergency provisions of GR 9(i), the amendment and assessment increase will be published expeditiously and become effective July 1, 2015.

DATED at Olympia, Washington this 12th of May, 2015.

(a) Effect of Schedule. The penalty for any infraction listed in this rule may not be changed by local court rule. The court may impose on a defendant a lesser penalty in an individual case. Provided that, whenever the base penalty plus statutory assessments results in a total payment that is not an even dollar amount, the base penalty is deemed to be amended to a higher amount which produces the next greatest even dollar total.

(b) Unscheduled Infractions. The penalty for any infraction not listed in this rule shall be $42 $48, not including statutory assessments. A court may, by local court rule, provide for a different penalty.

(c) Infractions Not Covered. This schedule does not apply to penalties for parking, standing, stopping, or pedestrian infractions established by municipal or county statute. Penalties for those infractions are established by statute or local court rule, but shall be consistent with the philosophy of these rules.

(d) Penalty Schedule. The following infractions shall have the penalty listed, not including statutory assessments.

[Adopted effective September 1, 1992; amended effective June 25, 1993; May 1, 1994; August 15, 1995; June 5, 1996; December 28, 1999; July 22, 2001; April 30, 2007; December 10, 2013.]

No. 25700-A-1103

GORDON McCLOUD, J. (dissenting)—We have been asked to choose between funding a desperately needed district court computer system by increasing fees charged to the users of those courts who are least able to pay, and not funding that system at all. We understand the majority's valid reasons for choosing to fund that critical computer project. But the project's significant benefits are outweighed by the substantial harm that its funding source would cause. We cannot agree to fund that new computer system by increasing court fees for those least able to pay. We therefore respectfully dissent.

This district court computer system is critically necessary. Our district courts are the hardworking courts at the base of our justice system in Washington. They are the courts that have the heaviest dockets and that handle some of the most pressing legal needs faced by Washington residents every day: domestic violence protection orders, assaults, DUI's, and other criminal charges. The district courts keep our society safe and functioning. They provide a main avenue for Washington residents to access justice by handling numerous cases involving critical issues and many litigants who cannot afford lawyers. And those courts are starved for funds. The fact that our district courts function so well and handle such huge caseloads despite severe financial restrictions is a testament to our hardworking judges and their very limited support staff. Of note to the court's order issued today, the district courts have to rely on a severely outdated computer system that is basically obsolete. A new computer system that can properly track district court cases statewide, and that can provide access to a party's record in other cases including other prior convictions, protection orders, or prohibitions, is not a luxury - it is a necessity for public safety.

But the governing statute says that to fund this project, we have to increase the fees charged to those who commit infractions - or suffer without funding for the project at all. The majority has therefore entered an order that increases the Judicial Information System assessment on traffic infractions from $17.00 to $23.00 and also increases the corresponding base penalty on such traffic infractions by $6.00, making the total increase per infraction $12.00 - an amount that was adopted as necessary to keep pace with inflation.

The sad reality is that courts across the country are pressured to obtain funds by imposing and increasing fees that disproportionately burden the people who are least able to pay. Funding our district courts is absolutely necessary but obtaining funds by increasing fees does more harm than good. It creates—or perpetuates—all of the following problems.

First, this increase to the base fee cannot be waived by the judge. The law says that it is mandatory and cannot be changed, even if the person can't pay. That's not fair.

In fact, our court condemned exactly that sort of unfairness just a few months ago in State v. Blazina, _ Wn.2d _, 344 P.3d 680, 681 (2015). In that case, we said that "a trial court has a statutory obligation to make an individualized inquiry into a defendant's current and future ability to pay before the court imposes LFOs [legal financial obligations]." Id. While Blazina dealt with a different type of fee than Infraction Rules for Courts of Limited Jurisdiction (IRLJ) 6.2, the subject of the majority's order here, does, the same principle should apply. Unfortunately, the majority abandons that principle by increasing traffic infraction fees regardless of ability to pay and our IRLJs do not require that a determination be made regarding a driver's ability to pay such fees.1

1 Courts may waive or reduce penalties for drivers who request a mitigation hearing, but a hearing is not required. IRLJ 2.4, 3.4.

Second, this type of fee system adversely affects poor populations specifically. As we recognized in Blazina, "indigent offenders owe higher LFO sums than their wealthier counterparts because they cannot afford to pay, which allows interest to accumulate and to increase the total amount that they owe."2 We rightly condemned that result in Blazina. We recognize that we are dealing with a different type of fee today. But the effect is the same. The data shows that the majority of fees generated from infractions comes not from the base infraction fee or even from the several additional, mandatory fees that the governing statutes tack on. Instead, the majority of those fees comes from penalties imposed when a payment is missed, for whatever reason. In other words, the people who are least able to pay up front, all at once, are the ones who end up paying the most. That was not fair in Blazina, and it's still not fair here.

2 Blazina, 344 P.3d at 684 (citing KATHERINE A. BECKETT, ALEXES M. HARRIS & HEATHER EVANS, WASH. STATE MINORITY & JUSTICE COMM'N, THE ASSESSMENT AND CONSEQUENCES OF LEGAL FINANCIAL OBLIGATIONS IN WASHINGTON STATE (2008) 21-22 (WASH. STATE MINORITY & JUSTICE COMM'N), available at http://www.courts.wa.gov/committee/pdf/2008LFO_report.pdf).

Third, the law governing this fee increase states that its purpose must be to compensate for the effects of inflation. But infraction payments are not necessarily down because of inflation. Instead, the data shows that they are down at least in part because the number of "committed" infractions are down. Why is the number of "committed" infractions down? We suspect that it is due in part to innovative court programs designed to assist low-income people with retaining their licenses. The majority's Order will make up the revenue shortfall caused by these programs - programs that all the Justices support - by burdening the remaining, smaller, group of people receiving infractions with the revenue shortfall that these positive programs cause. That's helping one group of court users at the expense of another. That's not fair, either.

Fourth, increasing fees to pay for court services is inefficient at best. As we noted in Blazina, if we are imposing fees to help fund the court system, "doubtful recoupment of money by the government" is a big problem. The reason was obvious to us in Blazina: "the state cannot collect money from defendants who cannot pay." Id. at 684. That's not sound fiscal policy.

Finally and critically, recent studies in Washington show that the burden of both traffic stops and infraction payments has a racially disproportionate impact. In Blazina, we recognized that "[s]ignificant disparities also exist in the administration of LFOs in Washington." Blazina, 344 P.3d at 684. That was not fair in Blazina, and it's still not fair here.

All this hints at the bigger issue: whether we should be funding our courts, which are designed to serve all the people, through user fees that disproportionately burden those who can least afford it. The clearest and most recent explanation of why this is such a bad policy appears in the Department of Justice's recent report exploring the relationship between legal fees and court revenue in Ferguson, Missouri. That report explains that when court fees are based on revenue needs, rather than on legitimate penological goals, unfairness results. The majority, however, states no penological justification for the increase in any of the infraction schedule, only a revenue need. As the DOJ report says, that's not fair, either.

The majority has made a policy decision to fund a desperately needed district court program with court user fees that burden those who are least able to pay. The majority's position is consistent with past practice and the national standard. But that system is broken. We totally agree that our district courts deserve the revenue for this program. We dissent, however, from the decision to achieve this goal by increasing mandatory, nonwaivable, infraction fees, that disproportionately burden the court users who are least able to pay. The end does not justify the means.

No. 25700-A-1103

Yu, J. (dissenting)—I concur in the dissent but write separately as co-chair of the Supreme Court's Minority and Justice Commission to express my disappointment with the Court's decision to continue funding our trial courts through fines and fees. The Commission has carefully examined and documented the practices and policies that contribute to bias within our court and to the growing lack of confidence in our system of justice. One of those identified policies that has contributed to the erosion of confidence has been placing the burden on municipal and district courts to generate revenue to sustain court operations. The idea of "cash register" justice or requiring judges to impose fines in order to fund the court's infrastructure is anathema to the idea of a free and independent judiciary that is accessible to all. The increase in the infraction rate may seem insignificant to some on this Court, but to the working class or poor, it is not trivial or inconsequential.

I respectfully disagree with the policy choice of this Court to continue funding our courts in this manner and dissent from the decision to do so.