Collaboration in Civic Spheres

AG warns of more “McCleary-esque” suits by county judges

by Matt Rosenberg February 1st, 2013

Washington could increasingly bear the costs of suing itself, having to pay for suits by state-funded public employees such as county superior court judges aggrieved at budget cuts imposed by county officials who may themselves then turn around and sue the state in response. That was the warning from the state’s Chief Deputy Attorney General Brian Moran in Olympia this week to lawmakers on the House Appropriations Subcommittee on General Government. (See TVW video below).

Moran said a current lawsuit against Grays Harbor County commissioners by the county’s superior court judges has so far cost the state $340,000 for outside counsel it is legally required to provide to the judges, who are state employees and have no funds of their own to sue. Moran, who was accompanied by new Attorney General Bob Ferguson, told the subcommittee the AG’s office will need another $600,000 to pay for the judges’ outside counsel in the 2013-15 state budget, although a settlement may occur before a scheduled trial this June.

Moran added that a similar standoff between superior court judges and county commissioners is looming in Cowlitz County, and that given similar county court funding problems across the state, such lawsuits at state expense could grow. “I would be astounded if the two counties didn’t become three” and then more, Moran told the subcommittee this week. County courts in many instances across the state are badly overcrowded and run-down.

The county has already spent another roughly $200,000 of its own to date with attorney Thomas Fitzpatrick and his partner, former State Supreme Court Justice Phil Talmadge of West Seattle, to defend itself against the judges and to in turn sue the state – claiming that it has been the real culprit by shirking its responsibility to adequately fund county court facilities. Beyond paying for the judges to sue the county, the state is also bearing additional costs for its own defense by the AG’s Office in the third-party action by the county board. The case is Grays Harbor Superior Court Judges v. Grays Harbor v. State of Washington.

The Grays Harbor judges sued the county in December, 2011 in neighboring Thurston County Superior Court, after their county’s commissioners had made cumulative cuts to the court’s budget over 10 years totaling five percent. The final straw was a planned 8.3 percent cut of $59,020 for the court in 2012 from the 2011 budget of $704,838; plus additional cuts to the budget of the juvenile justice center, The Daily World reported. The judges wanted a promised third courtroom, more court administrative staff to handle a pressing caseload, and basic security. They got the latter after a violent incident in the courthouse last March when an armed intruder shot a deputy and stabbed a judge. Both survived.

As explained in a backgrounder from Ferguson’s Office, the AG would have been able to represent the judges without paying outside counsel to do, except that the AG’s first obligation in the case was to defend the state against the county board’s lawsuit stemming from the judges’ suit against the county. Representing both sides would have posed a conflict.

Parallels to landmark education funding decision
Moran suggested that in calling attention to basic funding problems for which the state holds ultimate responsibility, the Grays Harbor case is “McCleary-esque.” This refers to the landmark McCleary v. State of Washington suit in which the state’s Supreme Court agreed with claims the state isn’t adequately funding K-12 public education, and ordered the legislature to come up with billions more for that in coming years.

Cowlitz County dispute could add to state costs for court funding controversies
There is a March 1 deadline for resolving the situation in Cowlitz; if that does not occur the superior court judges expect to file suit, and have already been granted funding by the county board (whom they would sue) to hire Scott Missall, the same Seattle attorney now representing the Grays Harbor judges. The county board on January 29 approved a proposal in a January 9 letter from Missall to pay him $390 per hour and when needed, another attorney at $280 an hour for representing the judges in negotiations. If the judges file suit against the county and it like Grays Harbor County then sues the state, the AG’s office would again be forced to pay for outside counsel for the judges.

Lawmakers, AG’s office ponder fixes
In the backgrounder, the AG’s office says under current state law its “‘duty to sue’ could extend to prosecuting attorneys and any other ’state official’ wishing to sue the state, county, and any other official or party.” In the subcommittee hearing, Moran said policy options range from a potentially costly laissez-faire approach to giving the AG more say-so on what “suits it jumps into” on behalf of public employees. State Rep. Jamie Pedersen, a member of the subcommittee, responded that another option would for the state’s Administrative Office of the Courts, which oversees the county superior courts, to have to approve such suits by court employees, and bear the expense.


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