Opening Brief of Appellants_
No. 1029870
IN THE SUPREME COURT OF
THE STATE OF WASHINGTON
WASHINGTON STATE ASSOCIATION OF COUNTIES,
et al.,
Appellants,
v.
STATE OF WASHINGTON,
Respondent.
OPENING BRIEF OF APPELLANTS
Paul J. Lawrence, WSBA #13557
Ian D. Rogers, WSBA #46584
Sarah S. Washburn, WSBA #44418
Christopher M. Sanders, WSBA #47518
PACIFICA LAW GROUP LLP
1191 Second Avenue, Suite 2000
Seattle, WA 98101-3404
(206) 245-1700
Attorneys for Appellants
i
TABLE OF CONTENTS
I. INTRODUCTION ........................................................ 1
II. ASSIGNMENTS OF ERROR ...................................... 3
Assignment of Error. ..................................................... 3
Issues Pertaining to Assignments of Error.................... 4
III. STATEMENT OF THE CASE..................................... 5
The State Has an Obligatory Constitutional Duty
to Provide Counsel for Indigent Criminal
Defendants. ................................................................... 5
The State’s Statutory Scheme Delegates Its
Obligatory Duty to Provide Indigent Defense
Services to Counties Without Providing Adequate
Means to Do So. ............................................................ 8
The State Knows Its Indigent Defense System Is
in Crisis, and Has Repeatedly Failed to Act. .............. 15
The Trial Court Rules the Counties Lack Standing
to Challenge the State’s Indigent Defense System. .... 29
IV. ARGUMENT .............................................................. 33
Standard of Review. .................................................... 33
The Counties Have Standing to Challenge the
State’s System of Delegating Indigent Defense
Responsibility. ............................................................ 34
1. Having Been Delegated the State’s Obligatory
Constitutional Duty to Provide Indigent Defense
Services, Counties Have Standing to Challenge
the State’s System. ....................................................... 36
ii
a. Davison Broadly Recognized the Claim the
Counties Make Here, Without Limiting Who
Can Bring It. ........................................................ 37
b. Under Seattle School District, Local
Governments Have Standing to Challenge
State Systems Delegating Constitutionally
Mandated Duties. ................................................. 38
c. The Court Should Reject the State’s and the
Trial Court’s Unreasonably Narrow Reading
of Seattle School District and Other
Precedent. ............................................................. 42
d. The Right to Counsel Is an Affirmative
Right..................................................................... 49
2. The Counties Also Have Standing Under the
Equal Protection and Due Process Clauses. ................ 56
3. Adequacy of the State’s Indigent Defense
Scheme Is an Issue of Serious Public Importance
Warranting Standing. ................................................... 61
V. CONCLUSION ........................................................... 71
iii
TABLE OF AUTHORITIES
Federal Cases
Anaya v. Baker,
427 F.2d 73 (10th Cir. 1970) ................................................ 53
Burnett v. Kerr,
835 F.2d 1319 (10th Cir. 1988) ............................................ 52
Cooks v. Newland,
395 F.3d 1077 (9th Cir. 2005) .............................................. 52
Gaines v. Kelly,
202 F.3d 598 (2d Cir. 2000) ................................................. 53
Gideon v. Cochran,
370 U.S. 908, 82 S. Ct. 1259, 8 L. Ed. 2d 403 (1962) ........... 6
Gideon v. Wainwright,
372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) ....... 6, 51
Johnson v. Zerbst,
304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938) .......... 51
O’Dell v. Netherland,
521 U.S. 151, 117 S. Ct. 1969, 138 L. Ed. 2d 351 (1997) ... 52
Powell v. Alabama,
287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932) .................. 51
Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ....... 5
Turner v. Rogers,
564 U.S. 431, 131 S. Ct. 2507, 180 L. Ed. 2d 452 (2011) ... 52
iv
United States v. Bryant,
579 U.S. 140, 136 S. Ct. 1954, 195 L. Ed. 2d 317 (2016) ... 51
United States v. Cronic,
466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984) ....... 6
United States v. Sanders,
247 F.3d 139 (4th Cir. 2001) ................................................ 53
Washington State Cases
King Cnty. v. Wash. State Bd. of Tax Appeals,
28 Wn. App. 230, 622 P.2d 898 (1981) ............................... 49
City of Ellensburg v. State,
118 Wn.2d 709, 826 P.2d 1081 (1992) ................................ 47
City of Seattle v. Ratliff,
100 Wn.2d 212, 667 P.2d 630 (1983) ............................ 62, 63
City of Seattle v. State,
103 Wn.2d 663, 694 P.2d 641 (1985) ........................... passim
City of Snoqualmie v. King Cnty. Exec. Dow Constantine,
187 Wn.2d 289, 386 P.3d 279 (2016) ............................ 35, 61
City of Spokane v. Kruger,
116 Wn.2d 135, 803 P.2d 305 (1991) .................................. 56
Davison v. State,
196 Wn.2d 285, 466 P.3d 231 (2020) ........................... passim
In re Disciplinary Proceeding Against Michels,
150 Wn.2d 159, 75 P.3d 950 (2003) .................................... 65
Kitsap Cnty. v. City of Bremerton,
46 Wn.2d 362, 281 P.2d 841 (1955) .................................... 48
v
Lakehaven Water & Sewer Dist. v. City of Federal Way,
195 Wn.2d 742, 466 P.3d 213 (2020) .................................. 47
Locke v. City of Seattle,
162 Wn.2d 474, 172 P.3d 705 (2007) ............................ 48, 57
McCleary v. State,
173 Wn.2d 477, 269 P.3d 227 (2012) ...................... 50, 51, 70
Moses Lake Sch. Dist. No. 161 v. Big Bend Cmty. Coll.,
81 Wn.2d 551, 503 P.2d 86 (1972) ...................................... 45
Reid v. Pierce Cnty.,
136 Wn.2d 195, 961 P.2d 333 (1998) .................................. 33
Seattle Sch. Dist. No. 1 of King Cnty. v. State,
90 Wn.2d 476, 585 P.2d 71 (1978) ............................... passim
Snohomish Cnty. Bd. of Equalization v. Dep’t of Revenue,
80 Wn.2d 262, 493 P.2d 1012 (1972) ...................... 45, 58, 59
State ex rel. Brundage v. Eide,
83 Wn.2d 676, 521 P.2d 706 (1974) .................................... 55
State v. A.N.J.,
168 Wn.2d 91, 225 P.3d 956 (2010) .............................. 62, 67
State v. Anderson,
72 Wn. App. 253, 863 P.2d 1370 (1993) ............................. 49
State v. Blazina,
182 Wn.2d 827, 344 P.3d 680 (2015) .................................. 69
State v. Fitzsimmons,
93 Wn.2d 436, 610 P.2d 893 (1980) .................................... 55
State v. Kanistanaux,
68 Wn.2d 652, 414 P.2d 784 (1966) ............................. passim
vi
State v. Waits,
200 Wn.2d 507, 520 P.3d 49 (2022) .................................... 67
State v. Watson,
155 Wn.2d 574, 122 P.3d 903 (2005) .................................. 35
Stevens Cnty. v. Stevens Cnty. Sheriff’s Dep’t,
20 Wn. App. 2d 346, 499 P.3d 917 (2021) .......................... 48
Tenore v. AT & T Wireless Serv.,
136 Wn.2d 322, 962 P.2d 104 (1998) .................................. 33
To-Ro Trade Shows v. Collins,
144 Wn.2d 403, 27 P.3d 1149 (2001) .................................. 60
Wash. State Hous. Fin. Comm’n v.
Nat’l Homebuyers Fund, Inc.,
193 Wn.2d 704, 445 P.3d 533 (2019) ................ 34, 35, 61, 70
Federal Constitutional Provisions
U.S. Const. amend. XIV ........................................................... 57
U.S. Const. art. VI, cl. 2 ........................................................... 43
Washington State Constitutional Provisions
Wash. Const. art. I, § 2 ......................................................... 1, 43
Wash. Const. art. I, § 3 ......................................................... 3, 57
Wash. Const. art. I, § 12 ................................................... 3, 4, 57
Wash. Const. art. 1, § 22 ........................................... 3, 5, 42, 56
Wash. Const. art. IX .......................................................... 41, 70
Wash. Const. art. IX, § 1 .......................................................... 38
vii
Washington State Statutes
RCW ch. 36.26 .......................................................................... 7
RCW ch. 84.52 ......................................................................... 12
RCW ch. 84.56 ........................................................................ 12
RCW 10.101.005 ........................................................................ 8
RCW 10.101.010(3) ................................................................. 69
RCW 10.101.030 .............................................................. 8, 9, 21
RCW 2.08.060 .......................................................................... 12
RCW 2.28.139 .......................................................................... 12
RCW 36.01.060 ........................................................................ 12
RCW 36.27.020 ........................................................................ 12
RCW 36.28.010 ........................................................................ 12
RCW 43.20.050 ........................................................................ 12
RCW 7.24.120 .......................................................................... 34
RCW 70.05.060 ........................................................................ 12
RCW 70.05.070 ........................................................................ 12
RCW 70.48.071 ........................................................................ 12
RCW 82.14.030 ........................................................................ 14
RCW 82.14.340 ........................................................................ 14
RCW 82.14.350 ........................................................................ 12
viii
RCW 82.14.450 ........................................................................ 12
RCW 84.52.135 .................................................................. 12, 14
RCW 84.55.005 ........................................................................ 13
Washington State Rules
CR 12(b)(6) .............................................................................. 33
CrR 3.1 ..................................................................................... 10
CrRLJ 3.1 ................................................................................. 10
JuCR 9.2 ................................................................................... 10
RAP 4.2 .................................................................................... 70
Other Authorities
Brittany Toolis, ‘Rights Are Being Violated’: WA Public
Defender Shortage Leads to Alleged Gap in
Representation, Kiro 7 News (Jan. 25, 2024)...... 11, 15, 60, 64
Caroline Wolf Harlow, U.S. Dep’t of Justice,
Defense Counsel in Criminal Cases (2000) .......................... 65
Daniel Beekman, WA’s Public Defender System Is Breaking
Down, Communities Reeling,
Seattle Times (Feb. 25, 2024) ............................................... 63
Daniel Walters, Inflation Has Turned Washington State’s
Property Tax Cap into a County Budget-Killer,
InvestigateWest (Mar. 21, 2024) ........................................... 14
David Aram Kaiser, Putting Progress Back into Progressive:
Reclaiming a Philosophy of History for the Constitution, 6
Wash. Univ. Jurisprudence Rev. 257 (2014) ........................ 53
ix
David P. Currie, Positive and Negative Constitutional Rights,
53 U. Chicago L. Rev. 864 (1986) ....................................... 54
H.B. 2202, 68th Leg., Reg. Sess. (Wash. 2024) ........................ 28
Jerry Cornfield, ‘Verge of Collapse’: Washington Public
Defenders Swamped by Cases,
Washington State Standard (Jan. 23, 2024) .......................... 64
Ken Armstrong et al., An Unequal Defense:
The Failed Promise of Justice for the Poor,
Seattle Times (Apr. 4, 2004) ................................................. 22
Ken Armstrong et al., For Some, Free Counsel Comes at a
High Cost, Seattle Times (Apr. 4, 2004) .............................. 22
Ken Armstrong et al., When It Comes to Justice For the Poor,
Washington Gets What It Pays For,
Seattle Times (Apr. 4, 2004) ................................................. 23
Laurence H. Tribe, The Abortion Funding Conundrum:
Inalienable Rights, Affirmative Duties, and the Dilemma of
Dependence, 99 Harv. L. Rev. 330 (1985) ........................... 54
Media Release, Wash. State Bar Ass’n, State Bar Adopts New
Public Defense Standards (Mar. 14, 2024) .......................... 10
Merriam-Webster Dictionary ............................................. 43, 44
Research Working Grp., Task Force on Race and the Criminal
Justice Sys., Preliminary Report on Race and Washington’s
Criminal Justice System, 5 Seattle U. L. Rev. 623 (2012) .... 65
S.B. 5773, 68th Leg., Reg. Sess. (Wash. 2024) ....................... 28
S.B. 5960, 51st Leg., Reg. Sess. (Wash. 1989) ........................ 17
x
Stephanos Bibas, Shrinking Gideon and Expanding
Alternatives to Lawyers,
70 Wash. & Lee L. Rev. 1287 (2013) ................................... 13
Stephen B. Bright & Sia M. Sanneh, Fifty Years of Defiance
and Resistance After Gideon v. Wainwright,
122 Yale L. J. 2150 (2013) .................................................... 13
Wash. State Auditor’s Office,
Financial Health: Counties (2022) ...................................... 14
1
I. INTRODUCTION
The right to counsel is an obligatory duty imposed on the
State by the United States Constitution, which the Washington
Constitution recognizes “is the supreme law of the land.” Wash.
Const. art. I, § 2. The Washington Constitution imposes a
similar obligatory duty on the State. The State has delegated its
obligatory duty to Washington’s counties.
In Davison v. State, 196 Wn.2d 285, 300, 466 P.3d 231
(2020), this Court recognized the State would be liable in
delegating this duty if its “statutory scheme systemically fails to
provide [counties] . . . with the authority and means necessary
to furnish constitutionally adequate indigent public defense
services.” The Washington State Association of Counties,
Lincoln County, Pacific County, and Yakima County
(collectively, the “Counties”) filed this lawsuit bringing exactly
the claim outlined in Davison: the State has for decades failed
to provide adequate support for local indigent defense services.
Put simply, the State’s statutory scheme systemically fails to
2
provide counties with the authority and means necessary to
fulfill the State’s indigent defense obligatory duty.
Despite acknowledging that the State’s indigent defense
system faces “serious challenges” and “the Counties have a
unique perspective and information that is important to this
issue,” the trial court ruled the Counties lack standing to bring
this claim. That was in error. In Seattle School District No. 1 of
King County v. State, 90 Wn.2d 476, 490–94, 585 P.2d 71
(1978), this Court expressly recognized local government
standing where the State delegates a judicially enforceable
constitutional obligation without providing adequate means to
fulfill it. That is the case here. And regardless, the State’s
current indigent defense crisis—and its broad implications for
counties and the indigent defendants they serve—are issues of
serious public importance warranting standing on this
additional ground.
The trial court’s ruling to the contrary unreasonably
limits the cause of action recognized in Davison, misconstrues
3
this Court’s decision in Seattle School District, and unfairly
excludes the perspectives of the local governments at the center
of the State’s public defense system. The ruling also ensures
that the undisputed crisis facing this system will continue to go
unaddressed.
This Court should reverse the trial court and hold the
Counties have standing to challenge the State’s statutory
scheme of providing and funding indigent defense services in
Washington.
II. ASSIGNMENTS OF ERROR
Assignment of Error.
1. The trial court erred in granting the State’s motion
to dismiss the Counties’ challenges to the statutory scheme for
funding indigent criminal defense under the Sixth and
Fourteenth Amendments to the United States Constitution and
article I, sections 3, 12, and 22 of the Washington Constitution
for lack of standing.
4
Issues Pertaining to Assignments of Error.
1. The State has an obligatory constitutional duty to
provide counsel for indigent criminal defendants, which
Washington’s current statutory scheme delegates to counties.
Do counties have standing to challenge the sufficiency of this
statutory scheme on the grounds that it systemically fails to
provide them with the authority and means necessary to furnish
constitutionally adequate indigent public defense services?
2. The State’s current indigent defense statutory
scheme results in disparities and inequities in the level of
justice across counties, implicating the Fourteenth Amendment
to the United States Constitution and article I, sections 3 and 12
of the Washington Constitution. The Counties have a direct
interest in the constitutionality of the statutory scheme by which
they are charged with funding and providing indigent defense
services. Are the Counties within the zone of interests of these
constitutional clauses such that they have standing to challenge
the sufficiency of the State’s indigent defense scheme
5
thereunder?
3. The State’s current indigent defense statutory
scheme systemically fails to provide counties with the authority
and means necessary to furnish constitutionally adequate
indigent defense services. The shortcomings of that scheme
have broad implications for counties, their residents, and the
indigent defendants they serve. Do these issues of serious
public importance warrant finding the Counties have standing
to challenge the sufficiency of the State’s indigent defense
scheme?
III. STATEMENT OF THE CASE
The State Has an Obligatory Constitutional Duty
to Provide Counsel for Indigent Criminal
Defendants.
No party to this case disputes that the Sixth Amendment
to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee the right to effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668,
685–86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Davison,
6
196 Wn.2d at 293. Nor is there any dispute that this right “is a
fundamental component of our criminal justice system.” United
States v. Cronic, 466 U.S. 648, 653, 104 S. Ct. 2039, 80 L. Ed.
2d 657 (1984). The State itself has recognized that this right “is
indispensable to the idea of justice under law” and “[a]n
essential assumption of our Constitution[] [that] transcends the
power of the states to determine their own criminal
procedures.” Br. for the State Gov’t Amici Curiae at 1, Gideon
v. Cochran, 370 U.S. 908, 82 S. Ct. 1259, 8 L. Ed. 2d 403
(1962), 1962 WL 115122, at *1 (amicus brief joined by
Washington Attorney General).
This constitutional guarantee “requires that counsel be
appointed for an indigent in noncapital as well as capital cases”
and “is obligatory upon the states by virtue of the Fourteenth
Amendment . . . .” State v. Kanistanaux, 68 Wn.2d 652, 654,
414 P.2d 784 (1966) (emphasis added) (citing Gideon v.
Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799
(1963)). As this Court recently explained: “The State plainly
7
has a duty to provide indigent public defense services . . . . This
fundamental right is obligatory on states under the Fourteenth
Amendment, and indigent defendants facing a criminal
prosecution in state court have a right to counsel at all critical
stages of the proceedings.” Davison, 196 Wn.2d at 293
(emphasis added); see also id. at 295 (referencing State’s
“obligation to safeguard the right to counsel”).1
As discussed below, the Washington Legislature has
delegated the State’s obligatory duty to provide indigent
defense services to local governments. See generally chs.
10.101 & 36.26 RCW. Under this statutory scheme, counties
carry out and fund essentially all trial court felony indigent
defense with negligible State support. See CP 10–11.
1 In Davison, this Court did not reach the question whether the
right to a defense is an “affirmative” right or not. An
“obligatory” “duty” is not substantively different than an
affirmative right. Kanistanaux, 68 Wn.2d at 654; Davison, 196
Wn.2d at 293. But as discussed infra, Section IV.B.1, the
Counties have standing under either characterization.
8
The State’s Statutory Scheme Delegates Its
Obligatory Duty to Provide Indigent Defense
Services to Counties Without Providing Adequate
Means to Do So.
Chapter 10.101 RCW sets out the State’s scheme for
providing indigent defense services. The legislation starts with
recognition of the obligatory duty to provide a defense: “The
legislature finds that effective legal representation must be
provided for indigent persons and persons who are indigent and
able to contribute, consistent with the constitutional
requirements of fairness, equal protection, and due process in
all cases where the right to counsel attaches.” RCW 10.101.005.
The State then assigns these “constitutional
requirements” to the counties of the State, requiring them to
“adopt standards for the delivery of public defense
services . . . .” RCW 10.101.030. These standards “shall”
include: “Compensation of counsel, duties and responsibilities
of counsel, case load limits and types of cases, responsibility
for expert witness fees and other costs associated with
representation, administrative expenses, support services,
9
reports of attorney activity and vouchers, training, supervision,
monitoring and evaluation of attorneys, substitution of
attorneys or assignment of contracts, limitations on private
practice of contract attorneys, qualifications of attorneys,
disposition of client complaints, cause for termination of
contract or removal of attorney, and nondiscrimination.” Id.
The State itself undertakes no obligations. The State’s
statutory scheme thus assigns the counties complete
responsibility for carrying out the State’s own public defense
obligations.
Finally, the legislation provides that the Washington
State Bar Association’s (WSBA’s) indigent defense standards
“should serve as guidelines” to counties in adopting standards.
RCW 10.101.030. The WSBA standards, initially adopted in
1984, address compensation, caseload limits, and attorney
responsibilities, among other things. CP 11. WSBA recently
adopted revised standards that reduce by roughly two-thirds the
maximum caseloads for public defenders—an update that will
10
require counties to retain additional defense counsel. CP 979-
85.2
Separately, this Court in 2012 adopted Standards for
Indigent Defense, which are codified in court rules governing
lawyer ethical and professional obligations. See generally
CrRLJ 3.1 stds. Public defense attorneys must certify
compliance with these standards—which include caseload
limits and other requirements—to serve as appointed counsel in
Washington courts. Id.; see also CrR 3.1 stds.; JuCR 9.2; CP
12.
Providing indigent defense counsel that meet these
requirements costs money. But the State provides minimal
dedicated funding. Under the current statutory scheme, counties
pay over 96 percent of indigent defense costs. CP 11–13, 186.
And these costs have grown exponentially in recent years due
2 See also Media Release, Wash. State Bar Ass’n, State Bar
Adopts New Public Defense Standards (Mar. 14, 2024),
https://www.wsba.org/news-events/media-center/media-
releases/state-bar-adopts-new-public-defense-standards.
11
to factors ranging from public defender shortages to new
standards imposing additional (and costly) requirements on
counties. CP 12–13, 165–66, 168–70, 172–74.3 Between 2012
and 2022, counties’ public defense costs increased by 88
percent, from $105 million to $198 million, while state funding
rose by only 3.5 percent, from $5.6 million to $5.8 million. CP
12–13, 186. In 2022, the State’s percentage share of these costs
was only 2.9 percent. CP 186.
The State has thus burdened counties with nearly the
entire cost of its indigent defense obligation, but has not
provided counties sufficient authority and resources to cover it.
See CP 14–18. First, the Legislature has established no
dedicated funding source for county indigent defense services.
3 See also Brittany Toolis, ‘Rights Are Being Violated’: WA
Public Defender Shortage Leads to Alleged Gap in
Representation, Kiro 7 News (Jan. 25, 2024),
https://www.kiro7.com/news/local/rights-are-being-violated-
wa-public-defender-shortage-leads-alleged-gap-
representation/7REDLOCZCBDAZKLQPKVMCICLWI/; CP
979–85 (revised WSBA indigent defense standards reducing
maximum caseloads for public defenders).
12
CP 16. Without a dedicated revenue source, indigent defense
must compete with other critical services counties must provide
to their residents—most of which are themselves delegated or
mandated by the State.4 CP 16–18, 166, 169, 173. This
structure pits a constitutional mandate against other mandated
operational expenses, presenting a lose-lose scenario for
counties already facing budget shortfalls.
Moreover, county revenue sources that theoretically
could be applied to indigent defense are insufficient to support
a constitutionally adequate and uniform system of indigent
defense. See CP 17–18. Several taxes require voter approval5
4 These include, but are not limited to, expenditures related to
public health, property tax assessment and collection, and law
and justice other than indigent defense (e.g., jails, courts, law
enforcement, prosecution). See, e.g., RCW 43.20.050; RCW
70.05.060; RCW 70.05.070; chs. 84.40, 84.52, & 84.56 RCW;
RCW 36.27.020; RCW 36.28.010–.011; RCW 2.08.060; RCW
2.28.139; RCW 36.01.060; RCW 70.48.071.
5 See, e.g., RCW 84.52.135 (criminal justice levy for counties
with population of 90,000 or less); RCW 82.14.350 (sales and
use tax for juvenile detention facilities and jails for counties
with population under one million); RCW 82.14.450 (sales and
13
and are thus “wholly dependent upon the whim of the
electorate . . . .” Seattle Sch. Dist., 90 Wn.2d at 525. This
problem is particularly acute because spending tax money on
indigent criminal defense is unpopular. See, e.g., Stephanos
Bibas, Shrinking Gideon and Expanding Alternatives to
Lawyers, 70 Wash. & Lee L. Rev. 1287, 1293 (2013) (“Indigent
defense is not politically popular, so voters and politicians are
loath to raise taxes to support it.”); Stephen B. Bright & Sia M.
Sanneh, Fifty Years of Defiance and Resistance After Gideon v.
Wainwright, 122 Yale L. J. 2150, 2153 (2013) (there is “no
public support” for providing funding necessary for counsel and
equal justice).
Finally, the major unrestricted county revenue sources
are statutorily capped at rates insufficient to cover the
ballooning cost of indigent defense, much less other critical
county services. See, e.g., RCW 84.55.005, .010 (one percent
use tax for counties and cities, one-third of which must be used
for criminal justice or fire protection purposes).
14
growth cap on general property tax); RCW 82.14.030 (five-
tenths of one percent cap on basic and optional sales tax); CP
17. These limits—as well as other legislatively-imposed caps
on county taxing authority6—have left counties on a financial
precipice as the costs of essential services outstrip revenues. See
CP 16–18, 165–66, 169–70, 173. The State’s own Auditor’s
Office has identified “concerning” or “cautionary” issues with
the financial health of 29 of Washington’s 39 counties.7
In this landscape, counties are forced to devote an ever-
increasing percentage of their general fund budgets to indigent
defense, at the cost of other core services. CP 16–18, 166, 169,
6 See, e.g., RCW 84.52.135 (criminal justice levy capped at 50
cents per $1,000 of assessed value); RCW 82.14.340 (criminal
justice sales tax set at one-tenth of one percent).
7 See Wash. State Auditor’s Office, Financial Health:
Counties (2022),
https://portal.sao.wa.gov/FIT/explore/financial-
health;filterGovType=06 (last visited June 25, 2024); see also
Daniel Walters, Inflation Has Turned Washington State’s
Property Tax Cap into a County Budget-Killer, InvestigateWest
(Mar. 21, 2024), https://www.invw.org/2024/03/21/inflation-
has-turned-washington-states-property-tax-cap-into-a-county-
budget-killer/.
15
173. The lack of available resources, coupled with the practical
demands of providing indigent defense services, have also
made it increasingly difficult for counties to hire and retain
qualified public defenders. CP 170, 173–74. Moreover,
counties’ ability to dedicate already-limited resources to
indigent defense varies across county lines. CP 18–20. The
consequence is “‘[j]ustice by geography,’” where the quality of
indigent defense services depends on the defendant’s location.8
The State Knows Its Indigent Defense System Is in
Crisis, and Has Repeatedly Failed to Act.
Over decades, numerous reports and studies have
concluded Washington’s indigent defense system is
overburdened, underfunded, and failing its mandate to provide
constitutionally adequate indigent defense services—and have
recommended the State provide funding for trial court indigent
defense. CP 20–29, 263–956. In 1988, in response to increased
indigent defense caseloads overwhelming many counties’ local
8 Toolis, supra n. 3 (quoting State Office of Public Defense
(OPD) director Larry Jefferson).
16
budgets, the Legislature established the Indigent Defense Task
Force (“Task Force”) to study Washington’s system of
providing indigent defense services and make recommendations
for improvements. CP 20, 269. The Task Force’s initial
investigation revealed that, among other things, Washington
had the highest indigency rate in the nation; escalating defense
costs and increasing caseloads were causes of concern
statewide; few local governments had uniformly applied
standards for delivery of indigent defense services; and delivery
systems varied substantially within and among counties. CP 20,
269, 272. These issues threatened the “continued delivery of
service to meet minimum constitution[al] requirements.” CP 20,
269, 272. Based on these findings, the Task Force
recommended that the State pay up to 50 percent of trial court
indigent defense costs incurred in certain case types. CP 20–21,
269, 273.
Based on the Task Force’s recommendations, several
senators proposed legislation in 1989 that would have required
17
counties to adopt standards for the delivery of indigent defense
services and provided for State reimbursement of up to 50
percent of indigent defense costs subject to available funding.
See S.B. 5960, 51st Leg., Reg. Sess. (Wash. 1989), §§ 4–6; CP
21, 269, 273–74. But the final bill as passed by the Legislature
omitted the funding provisions while still requiring counties to
adopt indigent defense standards. See CP 21, 274; Laws of
1989, ch. 409 (codified as amended at chapter 10.101 RCW).
As part of the 1989 legislation, as enacted, the Task
Force was reinstituted and directed to continue its
investigations and make further recommendations to the 1990
Legislature. CP 22, 271, 274. In June 1990, the Task Force
published another report in which it described Washington’s
indigent defense system as “overburdened and underfunded.”
CP 22, 291. It determined that based on overwhelming evidence
of burgeoning indigent defense caseloads and associated costs
throughout Washington, there was a “continued and urgent
need for additional funding for defense services.” CP 22, 266,
18
270. The Task Force further stated that “[a]n appropriate
indigent defense system can be maintained only through state
payment of 50% of the costs of providing defense services in
the trial courts,” and noted such cost sharing was “consistent
with the state’s obligation to the constitutional right to
defense.” CP 22, 281, 291.
Around the same time, the Commission on Washington
Trial Courts (“Commission”)—consisting of state and local
legislators, judges, various program and council representatives,
and others—was convened at the request of this Court to
examine and make recommendations regarding serious
problems affecting Washington trial courts. CP 22, 329. In
December 1990, the Commission issued a report concluding
that “funding is inadequate in most counties” in the areas of
“[p]ublic defenders” and “[c]ourt appointed experts,” among
others. CP 22, 374. Appendix 1 to the report summarized
testimony the Commission heard as part of its study. CP 22–23,
423–44. Among other things, Hon. Phillip J. Thompson, Chair
19
of the State Indigent Defense Task Force, testified that
“[i]ndigent defense is now a major expense for local
government” and is “a hardship, particularly for small, less
populous counties”; that the indigent defense funding problem
“has reached crisis proportions”; and that the Commission
“should study and support the recommendations of the [Task
Force], including 50% state funding.” CP 22–23, 442–43.
Also in 1990, the Washington State Advisory Group on
Indigent Defense (“Advisory Group”) was established through
the efforts of the Washington Administrator for the Courts to
study and make recommendations regarding various aspects of
Washington’s system of providing public defense services. CP
23, 460. The Advisory Group included judges, state legislators,
public defenders, prosecutors, representatives from the Attorney
General’s Office and Governor’s Office, and others. CP 23,
460, 484–85. The Advisory Group’s 1991 report noted that
local indigent defense costs had “spiraled dramatically as the
number of cases have more than doubled.” CP 23, 460. Among
20
other recommendations, the Advisory Group concluded: “The
Advisory Group feels strongly that the responsibility for
funding adequately the right to counsel for indigent defendants
is a shared responsibility of state and local government. The
Group recommends that the state provide 50% of these costs
out of the general fund.” CP 23, 462, 478–79.
Several reports issued in the early 2000s reiterated and
expanded on the above concerns. In October 2003, the
American Bar Association Juvenile Justice Center, the National
Juvenile Defender Center, and the Northwest Juvenile Defender
Center, in collaboration with other stakeholders (together, the
Washington Juvenile Justice Assessment Project (“WJJAP”)),
published a report evaluating access to counsel and quality of
representation in juvenile offender matters. CP 23–24, 500–95.
The WJJAP found that “[i]ncreasingly limited state and local
funding is affecting the availability of investigation funding for
juvenile cases,” “caseloads routinely violate accepted standards
of practice,” high caseloads were “reducing the quality of
21
representation,” and there was a large discrepancy in the
provision of training to juvenile defenders across the state. CP
24, 538, 547–48, 549–50. The WJJAP further found that “the
quality of counsel a child encounters depends significantly on
where he or she lives,” noting that most counties had failed to
adopt and/or enforce standards for delivery of public defense
services as required under RCW 10.101.030. CP 24, 552. The
WJJAP concluded that “Washington is obligated to ensure that
the due process rights of children in its juvenile justice system
are protected and that every child has meaningful access to
effective assistance of counsel at all stages of the justice
process,” and that it was in fact “fiscally responsible for the
state to ensure the quality of counsel for its children” so as to
lower recidivism rates and “sav[e] the state and all of its
residents the high fiscal, social, and emotional costs engendered
by lives of crime.” CP 24, 564–65.
22
In April 2004, the Seattle Times published an
investigative report on Washington’s indigent defense system.
See Ken Armstrong et al., An Unequal Defense: The Failed
Promise of Justice for the Poor, Seattle Times (Apr. 4, 2004),
https://special.seattletimes.com/o/news/local/unequaldefense/in
dex.html; CP 25. In a series of articles, the report described
ineffective assistance of counsel, excessive caseloads,
inadequate attorney compensation, and other systemic indigent
defense issues in Washington. CP 25. It noted, “[d]espite
repeated calls for the state to subsidize the cost of indigent
defense at the trial level, Washington has refused. The state
pays for indigent appeals but helps pay defense costs only in a
handful of extremely expensive trials. So counties, with fewer
taxing options than the state, are left to pay the mushrooming
costs of providing court-appointed counsel . . . .” Id.; Ken
Armstrong et al., For Some, Free Counsel Comes at a High
Cost, Seattle Times (Apr. 4, 2004),
https://special.seattletimes.com/o/news/local/unequaldefense/st
23
ories/one/index.html. The report further stated that
“Washington state has ignored pleas to help local governments
fund public defense. Nationally, states average 50 percent of
those costs; Washington pays 5.5 percent.” Ken Armstrong et
al., When It Comes to Justice For the Poor, Washington Gets
What It Pays For, Seattle Times (Apr. 4, 2004),
https://special.seattletimes.com/o/news/local/unequaldefense/st
ories/intro.html; CP 25.
In May 2004, the WSBA Blue Ribbon Panel on Criminal
Defense (“Panel”)—which was appointed by the WSBA Board
of Governors in May 2003 to address concerns about the
quality of indigent defense services in Washington—issued a
report on indigent defense. CP 25, 630–787. The Panel
concluded that many local jurisdictions had not adopted or
implemented standards for public defense services and that
there was no effective state enforcement program, which “may
lead to violations of the constitutional right to effective
assistance of counsel.” CP 25, 642, 662. It further concluded:
24
“Inadequate funding is a significant cause of failures in the
quality of indigent defense services in Washington. Panelists,
survey respondents, and investigative reports all point to a lack
of adequate funds as a root cause for unacceptably high
caseloads and other shortcomings in the provision of defense
services.” CP 25–26, 662. The Panel recommended that a
standing committee of WSBA be established to, among other
things, assess resources necessary to support effective
implementation of a constitutionally adequate defense services
program in Washington and consider ways to obtain additional
funding for those services, including additional state funding.
CP 26, 663–64.
In December 2004, the Board for Judicial
Administration’s 9 Court Funding Task Force—consisting of
9 The Board for Judicial Administration consists of judges
from all levels of Washington courts and is charged with
providing leadership to courts and developing policy to enhance
the administration of Washington’s court system. CP 26. The
Board appointed the Court Funding Task Force in response to
requests from the Washington State Superior Court Judges’
25
state legislators, county commissioners and council members,
county clerks, court administrators, and representatives of the
public, business, labor, the bar, and the judiciary—issued a
report on trial court funding. CP 26, 794–800. The report found
a strong nexus between state actions or mandates and the costs
of court operations in the area of criminal indigent defense and
recommended 100 percent state funding of that item. CP 26,
840–44. The report recognized that “[t]rial court funding must
be adequate to provide for the administration of justice equally
across the state” and that “virtually every major commission,
panel, and task force in the last 30 or more years which studied
Washington State courts has concluded that the trial courts are
not adequately funded and the responsibility for funding should
be shared jointly between state and local government.” CP 26–
27, 802, 812. It further noted that “[t]he variations of financial
health among local jurisdictions causes variations in the level of
Association and the Washington State District and Municipal
Court Judges’ Association. Id.
26
justice that jurisdictions can afford to provide.” CP 27, 831. It
concluded that “a root cause of inadequate funding in
Washington is our state’s nearly total reliance on local
government to fund the trial courts as well as indigent criminal
defense . . . . The state has a compelling interest in how justice
is delivered across the state and must partner with local
government in that endeavor.” CP 27, 865.
Ten years later, the Washington House Judiciary
Committee Chair and Ranking Member requested that OPD
convene a workgroup to study the cost of misdemeanor public
defense. CP 27, 873–74. The resulting House Judiciary
Workgroup on Misdemeanor Public Defense Costs in
Washington State (“Workgroup”) issued a report and findings
in December 2014. CP 27, 868–90. Among other things, the
Workgroup found that the “Supreme Court’s Standards for
Indigent Defense and emerging litigation have caused local
governments to invest greater resources in public defense, but
resources are limited.” CP 27, 889. The Workgroup
27
recommended: “Given the existing low level of state funding
and the increased costs identified to date, the State should
increase the funding levels to cities and counties for public
defense.” CP 27, 890.
In addition to the Washington-based studies described
above, national organizations have also recommended that
states fund indigent defense services. CP 27–28. The American
Bar Association, the National Legal Aid and Defender
Association, and the National Advisory Commission on
Criminal Justice Standards and Goals have all promulgated
standards reflecting a general consensus that the primary
responsibility for funding these services should be borne at the
state level. Id.
Given the multitude of reports and studies since the
1980s detailing systemic deficiencies in the State’s indigent
defense system and recommending additional state funding, the
State knew of these problems and the need for State funding for
many years. CP 28. And over the same time period, multiple
28
bills were introduced in the Legislature—including several
proposed or sponsored by plaintiff Washington State
Association of Counties—that would have required the State to
partially or fully fund trial court indigent defense. See CP 29
(listing examples through 2020); see also S.B. 5773, 68th Leg.,
Reg. Sess. (Wash. 2024) (proposing increase in state funding to
cities and counties, with the State to cover half of public
defense services by 2028); H.B. 2202, 68th Leg., Reg. Sess.
(Wash. 2024) (proposing a state program of assistance for local
government indigent public defense and law enforcement
costs). But the Legislature has repeatedly failed to adopt
measures that would increase State funding or enhance
counties’ ability to raise revenue for indigent defense. CP 29.
Counties have thus been left to bear this burden without
any stable, dependable, and regular revenue source. As a result,
in the words of the director of the State’s own OPD,
Washington’s indigent defense system is now “facing a grave
crisis” and “on the verge of collapse.” CP 217; see also
29
Davison, 196 Wn.2d at 304 (González, J., concurring) (“The
State has known for a long time that delegating primary
responsibility for public defense to local governments has often
led to the systematic deprivation of effective assistance of
counsel.”).
The Trial Court Rules the Counties Lack Standing
to Challenge the State’s Indigent Defense System.
In 2020, this Court recognized “a critical area in which
[the State] may be subject to liability” regarding its indigent
defense scheme—where there are “systemic and structural
deficiencies in our state system delegating authority to local
governments . . . .” Davison, 196 Wn.2d at 300. In 2023, the
Counties filed this lawsuit making exactly that claim, seeking a
declaratory judgment that the State’s indigent defense system
violates the right to counsel and equal protection under the
federal and state constitutions. CP 30–36. The Counties also
sought an injunction requiring the State to provide stable and
dependable funding for trial court indigent defense. CP 36–37.
30
The State moved to dismiss for lack of standing.10 CP
40–66. On April 4, 2024, the trial court entered an order
granting the State’s motion. CP 1033–39. The court agreed
there are “serious challenges” facing the State’s system of
providing indigent criminal defense and recognized that
“certainly the system is in crisis.” CP 1034; Report of
Proceedings (RP) (Mar. 22, 2024) at 24:11–12. Nevertheless,
the court ruled the Counties “lack standing to bring this
lawsuit.” CP 1035, 1038.
First, the trial court ruled the Counties “are not within the
zone of interests” under the right to counsel or equal protection
under the United States or Washington Constitutions because
those rights are “personal” and the right to sue thereunder “rests
with the individuals whose rights are purportedly being
violated . . . .” CP 1035. The court distinguished Davison as
involving solely the viability of a “plaintiff class of indigent
10 The State also argued that even if the Counties have
standing, their claim for injunctive relief should be dismissed.
CP 61–64. The trial court did not reach that argument.
31
criminal defendants” and concluded this Court “did not hold
that the right to counsel was a positive right that the State had
an affirmative duty to fulfill” or that “the Counties had a claim
to bring against the State in that regard.” CP 1035–36, 1037.
And the court distinguished this Court’s prior opinion in Seattle
School District (which recognized a local government’s
standing under analogous circumstances) on the ground that the
constitutional provision at issue there—article IX, section 1’s
directive that “[i]t is the paramount duty of the state” to amply
provide for education—puts an “affirmative duty on the State to
act” that is “not paralleled in the constitutional provisions that
the Counties rely on for their lawsuit.” CP 1036. In sum, the
trial court ruled the Counties “have no cognizable constitutional
claim against the State” because they “do not themselves hold
equal protection or due process rights to assert against the State
in this regard” and “do not possess a constitutional right to
counsel.” Id.
32
Second, the trial court summarily ruled the Counties
“cannot show an injury in fact flowing from the rights they
have alleged as the basis of their lawsuit because those are not
their rights to assert.” CP 1037. Despite acknowledging that the
Counties’ complaint and briefing “address[] the inadequate
system of authority and funding that [the Counties] allege
exists,” the court ruled that the “structure” of the Counties’
lawsuit improperly rests on alleged violations of individual
rights. Id.
Finally, the trial court declined to find standing under the
public importance doctrine. Pointing to the class in Davison and
unspecified “additional class actions . . . being litigated around
the country,” the court concluded that “[c]lass actions of
indigent criminal defendants can and have asserted their own
constitutional rights.” CP 1037. While the court acknowledged
the Counties “have a unique perspective and information that is
important to this issue,” it was “not persuaded that the Counties
alone are sufficient” to address it. Id.
33
The trial court dismissed the Counties’ claims with
prejudice. CP 1038. The Counties timely appealed and seek
direct review by this Court.
IV. ARGUMENT
Standard of Review.
This Court reviews de novo a trial court’s decision to
dismiss a case for lack of standing under CR 12(b)(6). See Reid
v. Pierce Cnty., 136 Wn.2d 195, 200–01, 961 P.2d 333 (1998).
Dismissal is appropriate “only if it appears beyond doubt that
the plaintiff cannot prove any set of facts which would justify
recovery.” Tenore v. AT & T Wireless Serv., 136 Wn.2d 322,
329–30, 962 P.2d 104 (1998). When reviewing a dismissal
under CR 12(b)(6), the plaintiff’s allegations are presumed to
be true and the court may consider hypothetical facts not
included in the record. Id. at 330.
34
The Counties Have Standing to Challenge the
State’s System of Delegating Indigent Defense
Responsibility.
Standing under the Uniform Declaratory Judgments Act
(UDJA) requires that: (1) “the interest sought to be protected is
arguably within the zone of interests to be protected or
regulated by the statute or constitutional guarantee in question”,
and (2) “the challenged action has caused injury in fact,
economic or otherwise, to the party seeking standing.” Wash.
State Hous. Fin. Comm’n v. Nat’l Homebuyers Fund, Inc., 193
Wn.2d 704, 711–12, 445 P.3d 533 (2019) (cleaned up).
Because “[t]he UDJA is to be ‘liberally construed and
administered,’” standing is “not intended to be a particularly
high bar.” Id. at 712 (quoting RCW 7.24.120). This Court no
longer applies a legalistic or rigid test of standing, particularly
where a local government challenges the constitutionality of
state law. Seattle Sch. Dist., 90 Wn.2d at 493 (“[W]e no longer
consider standing an insurmountable barrier to reaching a
decision on the merits when a municipal corporation
35
challenges, as unconstitutional, a legislative act.”); see also City
of Seattle v. State, 103 Wn.2d 663, 668, 694 P.2d 641 (1985)
(same); City of Snoqualmie v. King Cnty. Exec. Dow
Constantine, 187 Wn.2d 289, 296, 386 P.3d 279 (2016) (same).
Moreover, courts “appl[y] standing requirements more
liberally where an issue is of serious public importance.” City of
Snoqualmie, 187 Wn.2d at 296 (cleaned up). As recently
confirmed: even if a party does not meet the two-part standing
test, the court may “relax these requirements when a matter of
substantial public importance would otherwise evade review.”
Wash. State Hous. Fin. Comm’n, 193 Wn.2d at 712; see also
State v. Watson, 155 Wn.2d 574, 578, 122 P.3d 903 (2005)
(“[E]ven traditional standing to bring a lawsuit is not an
absolute bar to a court’s review where an important issue is at
stake.”).
As detailed below, the Counties have standing to
challenge the State’s statutory scheme delegating to them the
36
duty to provide constitutionally mandated indigent defense
services. The trial court erred in ruling otherwise.
1. Having Been Delegated the State’s Obligatory
Constitutional Duty to Provide Indigent Defense
Services, Counties Have Standing to Challenge the
State’s System.
Initially, the trial court mischaracterized the Counties’
claim here. The Counties are not arguing on behalf of a specific
individual claiming their constitutional right to an adequate
defense was violated. Rather, the Counties are arguing that the
State’s statutory scheme delegating away its obligatory duty to
provide indigent defense is systemically deficient under the
United States and Washington Constitutions. As the Davison
Court decided, such a systemic claim is the only constitutional
claim under which the State can be held liable for failure to
provide an adequate defense.
In that light, this Court’s decision in Seattle School
District demonstrates the Counties have standing here. There,
this Court held where the State delegates an obligatory
constitutional duty to local governments without providing
37
adequate means to fulfill it, those governments have standing to
challenge the State’s system. Here, the Counties—local
governments to which the State has delegated its constitutional
indigent defense obligation—have standing to challenge the
statutory scheme’s systemic failure to provide them with the
authority and means necessary to fulfill this constitutionally
mandated duty. The trial court’s ruling to the contrary is
grounded in an overly narrow and incorrect reading of Seattle
School District and Davison, and should be reversed.
Davison Broadly Recognized the Claim the
Counties Make Here, Without Limiting Who
Can Bring It.
This Court in Davison recognized a cause of action
challenging the State’s “systemic[] fail[ure] to provide local
governments . . . with the authority and means necessary to
furnish constitutionally adequate indigent public defense
services.” 196 Wn.2d at 300 (emphasis added). The trial court
read Davison to make this claim exclusively available to the
“plaintiff class of indigent criminal defendants” at issue there.
38
CP 1035–36. But nothing in Davison so limits that cause of
action.
Nor would such a limit make sense. Counties are directly
impacted by, and uniquely situated to address, the adequacy of
the State’s system of delegating to them its own obligatory
indigent defense duty. Davison does not require a contrary
result.
Under Seattle School District, Local
Governments Have Standing to Challenge State
Systems Delegating Constitutionally Mandated
Duties.
Under this Court’s decision in Seattle School District,
local governments have standing to challenge the State’s
delegation of its own obligatory constitutional duties without
sufficient resources to carry out the same.
In Seattle School District, this Court addressed the
statutory scheme that delegated to local school districts the
State’s “judicially enforceable affirmative duty” to provide for
K-12 education under the Washington Constitution. 90 Wn.2d
at 500; see also Wash. Const. art. IX, § 1 (“It is the paramount
39
duty of the state to make ample provision for the education of
all children residing within its borders . . . .”). The Seattle
School District sought declaratory relief against the State,11
claiming that while the District was charged by state law with
providing a constitutionally compliant education program, it
was not given sufficient state revenue to do so. Seattle Sch.
Dist., 90 Wn.2d at 485. Rather, the Legislature had authorized
school districts to supplement insufficient state funding by
resort to special excess levy elections—which were “wholly
dependent upon the whim of the electorate” and “available only
on a temporary basis.” Id. at 485, 525.
The State claimed the District lacked standing to seek the
requested declaratory relief. Id. at 491. This Court disagreed.
Applying a “more liberalized view of standing,” the Court held
it was “clear the District has standing to challenge the
constitutionality of the school financing system.” Id. at 493.
11 Other plaintiffs in the case included parents and students.
Seattle Sch. Dist., 90 Wn.2d at 486.
40
The Court first explained that “[p]ast unrealistically strict
considerations of ‘standing’ have been eroded thus permitting
broader factual ‘interests’ to give rise to standing.” Id. Thus, the
Court “no longer consider[s] standing an insurmountable barrier
to reaching a decision on the merits when a municipal
corporation challenges, as unconstitutional, a legislative act.”
Id.
The Court then noted the interests at stake were “not
theoretical,” but involved “actual financial constraints imposed
upon the District by the challenged system itself.” Id.
Accordingly, the District’s interests were within the zone of
interest either regulated by the challenged legislative and
regulatory scheme at issue or by article IX of the Constitution.
Id. at 493–94. As this Court emphasized, “it would be
unreasonable to deny standing to the District which, far from
being a nominal party, stands at the very vortex of the entire
financing system.” Id. at 494. The Court thus concluded:
“Having demonstrated sufficient factual injury and having
41
shown that the interest to be protected is within the zone of
interest protected by [article IX of the Constitution], we hold
the District has standing.” Id.
Seattle School District governs the standing issues in this
case. Like the District there, the Counties are challenging the
failure of a statutory scheme to provide sufficient resources for
them to carry out an “obligatory” constitutional duty (here, to
provide indigent defense services). Kanistanaux, 68 Wn.2d at
654; Davison, 196 Wn.2d at 293.
And the Counties—which together with Washington’s
other counties pay over 96 percent of indigent defense costs—
are “at the very vortex of the entire financing system” for
fulfilling that duty. Seattle Sch. Dist., 90 Wn.2d at 494. As in
Seattle School District, the Counties’ interests here involve
“actual financial constraints imposed upon [them] by the
challenged system itself.” Id. at 493; see also CP 14–18, 29
(describing State’s failure to provide counties with sufficient
authority and means to furnish adequate indigent defense
42
services). The Counties have thus shown both injury in fact and
that their interests are within the zone of interests regulated by
the Sixth Amendment to the United States Constitution, article
I, section 22 of the Washington Constitution, and the statutory
scheme delegating to local governments the State’s duties
thereunder. See Seattle Sch. Dist., 90 Wn.2d at 493–94.
Accordingly, under this Court’s “more liberalized view
of standing,” the Counties have standing to bring this systemic
challenge. Id. at 493.
The Court Should Reject the State’s and the
Trial Court’s Unreasonably Narrow Reading of
Seattle School District and Other Precedent.
In ruling against the Counties, the trial court concluded
that Seattle School District’s standing analysis only applies to
the “paramount duty” to provide education, which (according to
the court) is an “affirmative duty . . . not paralleled” in the
constitutional provisions establishing the right to counsel. CP
1036. But that ruling is neither supported in Seattle School
43
District nor consistent with the right to counsel as construed by
this Court.
To start, the right to counsel is made obligatory on the
State under the federal Constitution—which undeniably is
“paramount” to our own Constitution. See U.S. Const. art. VI,
cl. 2 (“This Constitution . . . shall be the supreme Law of the
Land; and the Judges in every State shall be bound
thereby . . . .”); Wash. Const. art I, § 2 (“The Constitution of the
United States is the supreme law of the land.”). The definition
of “supreme” is “highest in rank or authority,” and the
definition of “paramount” is “superior to all others:
SUPREME.” Merriam-Webster Dictionary, available at
https://www.merriam-webster.com/dictionary/supreme &
https://www.merriam-webster.com/dictionary/paramount.
Fixating on our Constitution’s “paramount duty”
language ignores the State’s mandatory constitutional
obligations arising from the “supreme law”—including to
provide counsel for those who cannot afford it. There is no
44
rational distinction between school districts carrying out the
State’s “paramount duty” to amply provide for K-12 education
and counties carrying out the State’s “supreme” constitutional
mandate to provide indigent defense.
Moreover, this Court’s own language supports the
conclusion that the right to an ample education and the right to
counsel are equally duties and obligations of the State. An
“obligatory” duty—as this Court characterized the right to
counsel in Kanistanaux, 68 Wn.2d at 654 and Davison, 196
Wn.2d at 293—is substantively the same as a “judicially
enforceable affirmative duty,” as this Court characterized the
duty at issue in Seattle School District. 90 Wn.2d at 500. The
definition of “obligatory” is “binding in law,” “mandatory,”
“required.” Merriam-Webster Dictionary, available at
https://www.merriam-webster.com/dictionary/obligatory.
Regardless, Seattle School District did not rely on or
even mention the “paramount” nature of the right to education
in holding the District had standing, discussing this only after
45
the Court found standing (and for the separate purpose of
assessing the scope of the State’s obligation). 90 Wn.2d at 490–
94, 497–504, 510–23. It was the Court’s “more liberalized view
of standing”—and not the “paramount” nature of the right in
question—that made it “clear the District ha[d] standing to
challenge the constitutionality of the school financing system.”
Id. at 493. Indeed, the Court’s conclusion that “we no longer
consider standing an insurmountable barrier . . . when a
municipal corporation challenges, as unconstitutional, a
legislative act,” id., was based on cases that have nothing to do
with the Constitution’s “paramount duty” provision. See Moses
Lake Sch. Dist. No. 161 v. Big Bend Cmty. Coll., 81 Wn.2d 551,
555–63, 503 P.2d 86 (1972) (reviewing merits of school
district’s claim that state law transferring property from district
to community college was unconstitutional); Snohomish Cnty.
Bd. of Equalization v. Dep’t of Revenue, 80 Wn.2d 262, 264–
65, 493 P.2d 1012 (1972) (county board of equalization and
46
county assessor had standing to seek declaratory judgment
adjudicating constitutionality of property tax equalization law).
Nor are the standing principles discussed in Seattle
School District applicable only to school districts, as the State
has claimed. See Resp’t’s Ans. to Statement of Grounds for Dir.
Rev. at 9–10. This Court in Seattle School District endorsed a
broad view of local government standing based on the “more
liberalized view of standing now recognized both by the United
States Supreme Court and our own . . . .” 90 Wn.2d at 493. The
Court’s zone of interest discussion emphasized the financial
constraints imposed on the District by the challenged system.
Id. at 493–94. That the Court also described the “basic reason
school districts exist” (to educate children) and referenced such
districts’ statutory authority to sue to maintain their schools and
protect their rights, id. at 494, is unsurprising given the entity
claiming standing there was a school district. Nothing in Seattle
School District holds or implies that local government standing
extends only to single-purpose entities. And any such limit
47
would be inconsistent with the liberalized view of local
government standing the Court articulated. The Court should
reject the State’s attempt to limit Seattle School District in this
manner.
The Counties also expect the State will rely on a handful
of cases declining to find public entity standing in particular
circumstances, some of which distinguish Seattle School
District. But none of those cases involved a local governmental
challenge to the State’s system of delegating an “obligatory”
constitutional duty. The discretionary act of a local government
imposing an excise tax is not a delegation of a State obligatory
duty. Lakehaven Water & Sewer Dist. v. City of Federal Way,
195 Wn.2d 742, 769–74, 466 P.3d 213 (2020) (districts lacked
standing to challenge city excise tax under due process and
privileges and immunities clauses). Nor is the exercise of
statutory authority to contract for fire protection services. City
of Ellensburg v. State, 118 Wn.2d 709, 715, 826 P.2d 1081
(1992) (rejecting claim that State had obligation to fully fund
48
fire protection services, absent a constitutional mandate). Nor is
the enactment of firearms safety regulations. Stevens Cnty. v.
Stevens Cnty. Sheriff’s Dep’t, 20 Wn. App. 2d 34, 42–46, 499
P.3d 917 (2021) (county lacked standing to challenge
constitutionality of statutory mental health firearms restriction),
review denied, 199 Wn.2d 1008, 506 P.3d 639 (2022). Nor is
the statutory imposition of rules under state pension plans.
Locke v. City of Seattle, 162 Wn.2d 474, 481–83, 172 P.3d 705
(2007) (city lacked standing to challenge Washington Law
Enforcement Officers’ and Fire Fighters’ Retirement System
Act’s “right to sue” provision under privileges and immunities
clause). Nor is the State’s exercise of its own control of judicial
salaries. Kitsap Cnty. v. City of Bremerton, 46 Wn.2d 362, 366–
68, 281 P.2d 841 (1955) (county lacked standing to challenge
statutory raise in salaries). As the Court of Appeals noted in
King County v. Washington State Board of Tax Appeals, a case
the State has cited, “[u]nlike the constitutional questions at
issue in Seattle School District, the issues for which review was
49
sought here were ones of statutory interpretation.” 28 Wn. App.
230, 236, 622 P.2d 898 (1981).12 Accordingly, these cases do
not support the State’s claim that the Counties lack standing
here.
The Right to Counsel Is an Affirmative Right.
As argued above, whether the right to counsel is an
“affirmative right” does not determine whether the Counties
have standing here: it is enough, under Seattle School District,
that the right is an obligatory duty of the State. See supra,
Section IV.B.1.b–c. However, as discussed below, the trial
court’s attempt to distinguish Seattle School District on the
ground that the right to counsel does not “put[] an affirmative
duty on the State to act,” CP 1036, conflicts with longstanding
federal authority and this Court’s own precedent. Contrary to
the trial court’s ruling—and further supporting the Counties’
12 The State has also cited State v. Anderson, 72 Wn. App.
253, 258–59 & n.13, 863 P.2d 1370 (1993), review denied, 124
Wn.2d 1010, 879 P.2d 292 (1994). There the Court held the
State lacked standing to challenge its own statute on right to
counsel or due process grounds. That has nothing to do with the
Counties’ claim here.
50
standing under Seattle School District—the right to counsel is
not only “supreme” but one of the rare “positive” constitutional
rights that impose affirmative duties on the State, and that are
“absolute and cannot be invaded or impaired.” Seattle Sch.
Dist., 90 Wn.2d at 513 n.13.
Most constitutional provisions are framed as “negative
restrictions” on government action, as to which courts ask
whether the state has “overstepped its bounds.” McCleary v.
State, 173 Wn.2d 477, 519, 269 P.3d 227 (2012); see also
Seattle Sch. Dist., 90 Wn.2d at 513 n.13 (noting certain rights
“exist because the constitutions have, in a negative sense,
provided for noninterference with specific legal entities”). In
contrast, certain “true” or “absolute” rights exist “either by
reason of a positive constitutional grant or because the
constitution has been so interpreted.” Seattle Sch. Dist., 90
Wn.2d at 513 n.13. Such rights give rise to correlative duties
that require, rather than restrain, government action. Id.; see
also McCleary, 173 Wn.2d at 519. In that context, courts ask
51
whether the state action achieves or is reasonably likely to
achieve the constitutionally prescribed end. McCleary, 173
Wn.2d at 519.
Beginning in the 1930s, the U.S. Supreme Court
interpreted the right to counsel as imposing an affirmative duty
on the part of the government to provide legal assistance if the
accused cannot afford it. See, e.g., Powell v. Alabama, 287 U.S.
45, 58, 68–73, 53 S. Ct. 55, 77 L. Ed. 158 (1932); Johnson v.
Zerbst, 304 U.S. 458, 467–68, 58 S. Ct. 1019, 82 L. Ed. 1461
(1938), abrogated on other grounds as recognized by Jones v.
Hendrix, 599 U.S. 465, 485, 143 S. Ct. 1857, 216 L. Ed. 2d 471
(2023). Three decades later, Gideon established a categorical
federal constitutional right to court-appointed counsel in
criminal prosecutions and made that right obligatory upon the
states. 372 U.S. at 342–45.
Since Gideon, the U.S. Supreme Court repeatedly has
confirmed the affirmative nature of indigent defendants’ right to
counsel. See United States v. Bryant, 579 U.S. 140, 149, 136 S.
52
Ct. 1954, 195 L. Ed. 2d 317 (2016) (Sixth Amendment
“requires appointment of counsel for indigent defendants
whenever a sentence of imprisonment is imposed”); Turner v.
Rogers, 564 U.S. 431, 441, 131 S. Ct. 2507, 180 L. Ed. 2d 452
(2011) (“This Court has long held that the Sixth Amendment
grants an indigent defendant the right to state-appointed counsel
in a criminal case.”); O’Dell v. Netherland, 521 U.S. 151, 167,
117 S. Ct. 1969, 138 L. Ed. 2d 351 (1997) (noting “the
sweeping rule of Gideon . . . established an affirmative right to
counsel in all felony cases”). And federal circuit courts have
followed suit. See, e.g., Burnett v. Kerr, 835 F.2d 1319, 1321
(10th Cir. 1988) (Sixth Amendment “has been interpreted to
mean not only that the government may not prevent a defendant
from being represented by counsel, but also that the
government has the affirmative obligation to provide counsel
for those criminal defendants who cannot afford such services
themselves”) (emphasis added); Cooks v. Newland, 395 F.3d
1077, 1080 (9th Cir. 2005) (“Gideon held that the Sixth
53
Amendment requires the state to appoint counsel for indigent
criminal defendants.”).13
Consistent with the above authorities, numerous scholars
have concluded the Sixth Amendment right to counsel gives
rise to affirmative duties on the part of the state. Specifically:
“By the time of Gideon, the interpretation of the Sixth
Amendment right to counsel had already changed in the federal
courts from being simply a negative right barring the
government from prohibiting a defendant from obtaining
representation to including the positive duty that the
government provide counsel for indigent defendants.” David
Aram Kaiser, Putting Progress Back into Progressive:
Reclaiming a Philosophy of History for the Constitution, 6
Wash. Univ. Jurisprudence Rev. 257, 289 (2014); see also
13 See also United States v. Sanders, 247 F.3d 139, 150 (4th
Cir. 2001) (Gideon established an “affirmative right to counsel
in all felony cases”); Gaines v. Kelly, 202 F.3d 598, 604 (2d
Cir. 2000) (same); Anaya v. Baker, 427 F.2d 73, 74 (10th Cir.
1970) (Sixth Amendment “guarantees to persons unable to
obtain their own counsel the right to have counsel appointed in
their behalf”).
54
Laurence H. Tribe, The Abortion Funding Conundrum:
Inalienable Rights, Affirmative Duties, and the Dilemma of
Dependence, 99 Harv. L. Rev. 330, 331–32, 334 (1985)
(assistance of counsel is an “exceptional” right expressed in
positive form); David P. Currie, Positive and Negative
Constitutional Rights, 53 U. Chicago L. Rev. 864, 873 (1986)
(“[T]he Court has long held that [the Sixth Amendment]
imposes an affirmative duty on the government to provide legal
assistance if the defendant cannot afford it.”).
In line with the extensive authorities above, this Court
has time and again recognized the affirmative nature of the right
to counsel, most recently in Davison. While the Davison Court
found it unnecessary to decide whether the right to counsel is a
“positive right,” 196 Wn.2d at 294 n.1, it acknowledged the
State’s affirmative obligation to provide counsel: “The State
plainly has a duty to provide indigent public defense services—
both our state and federal constitutions guarantee the accused
the right to counsel. . . . This fundamental right is obligatory on
55
states under the Fourteenth Amendment . . . .” Id. at 293
(emphasis added); see also id. at 295 (referencing “State’s
obligation to safeguard the right to counsel”) (emphasis added).
Under Davison, the Legislature “retains ultimate responsibility
for drafting a statutory scheme that sufficiently safeguards the
constitutional right to counsel” and “cannot abdicate its duty” in
this regard. Id. at 300.
Davison is only the latest of this Court’s decisions
confirming the State’s affirmative, i.e. positive, obligation to
provide counsel. See, e.g., Seattle Sch. Dist., 90 Wn.2d at 502–
03 & n.6 (article I, section 22’s right to counsel is one of
several “judicially enforceable affirmative duties of the State”);
State ex rel. Brundage v. Eide, 83 Wn.2d 676, 679, 521 P.2d
706 (1974) (Sixth Amendment “imposes upon the state the
obligation of furnishing counsel to indigent criminal
defendants”); State v. Fitzsimmons, 93 Wn.2d 436, 443, 610
P.2d 893 (1980) (Gideon “established the indigent’s Sixth
Amendment right to counsel at the expense of the state”),
56
vacated, 449 U.S. 977, 101 S. Ct. 390, 66 L. Ed. 2d 240 (1980),
aff’d on remand, 94 Wn.2d 858, 620 P.2d 999 (1980),
overruled in part on other grounds, City of Spokane v. Kruger,
116 Wn.2d 135, 803 P.2d 305 (1991).
The trial court’s conclusion that Davison does not
support an affirmative constitutional duty to provide counsel,
CP 1036, is thus contradicted by this Court’s authority,
including Davison itself. Under Seattle School District, the
Counties have standing to challenge the State’s delegation of
this duty to them without providing the authority and means
necessary to adequately fulfill it.
2. The Counties Also Have Standing Under the Equal
Protection and Due Process Clauses.
The Sixth Amendment to the United States Constitution
and article I, section 22 of the Washington Constitution are not
the only grounds on which the Counties have standing here.
Contrary to the trial court’s ruling, federal and state equal
protection and due process rights—threatened by the State’s
current indigent defense scheme—provide a separate and
57
independent basis for this Court to find standing. See U.S.
Const. amend XIV; Wash. Const. art. I, §§ 3, 12.
In denying standing, the trial court ruled the Counties “do
not themselves hold equal protection or due process rights to
assert against the State . . . .” CP 1036. But that is not the
relevant question. To the contrary, in City of Seattle, this Court
recognized that a local government can fall within the zone of
interests of a constitutional provision—and so have standing—
even if it “does not itself have rights under” that constitutional
provision. 103 Wn.2d at 668. There, the City of Seattle
challenged a statute governing annexation of territory by
municipalities under the state and federal equal protection
clauses. Id. at 665–67. Defendants argued the City lacked
standing to bring equal protection claims because those rights
extend to individuals, not municipalities. Id. at 668. This Court
disagreed. Citing Seattle School District, the Court explained
that “[s]tanding is not an insurmountable barrier to municipal
corporations challenging the constitutionality of a legislative
58
act.” Id. The Court held that while the City did not itself have
rights under the state and federal equal protection clauses,
“[p]rotection for the integrity of the political process, as well as
individuals’ rights, is within the zone of interests protected by
the equal protection clause.” Id. at 668–69. Because the City
had “a direct interest in the fairness and constitutionality of the
process by which it annexes territory,” it had standing to
challenge the statute at issue. Id. at 669.
In so holding, the Court cited Snohomish County Board
of Equalization, where the Court previously found standing “for
a public agency which was required to act under a statute which
was arguably unconstitutional.” City of Seattle, 103 Wn.2d at
669. There, a county board of equalization and county assessor
sought a declaratory judgment that a property tax equalization
statute violated state constitutional limits on property taxation.
Snohomish Cnty. Bd. of Equalization, 80 Wn.2d at 262–63.
While this Court ultimately declared the statute was
constitutional, it also ruled the county plaintiffs had standing to
59
bring the action. Id. at 264–65. The Court explained: “Without
a decision of this court, [plaintiffs] were placed in a position of
making a determination of a difficult question of constitutional
law with the possibility of facing both civil and criminal
penalties if they made the wrong choice.” Id. at 264 (footnotes
omitted). Without addressing the zone of interest or injury in
fact prongs of the standing test, the Court simply noted that
“[o]ne of the purposes of declaratory judgment laws is to give
relief from such situations.” Id. at 264–65.
These cases support the Counties’ standing here. The
Counties have a direct interest in the constitutionality of the
system by which they are charged with funding and providing
indigent defense services. Ensuring the adequacy of that
system—and, in turn, avoiding liability for constitutional
violations arising from the system’s deficiencies—is within the
zone of interests protected by the equal protection and due
process clauses. See City of Seattle, 103 Wn.2d at 668–69;
Snohomish Cnty. Bd. of Equalization, 80 Wn.2d at 264–65; see
60
also Toolis, supra n. 3 (per OPD director Larry Jefferson,
current scheme results in “‘[j]ustice by geography’”); CP 18–20
(State’s system of funding indigent defense has resulted in
disparities and inequities in level of justice across counties).
And the Counties—whose financial interests are impacted by
the State’s failure to afford them sufficient means and authority
to provide constitutionally adequate indigent defense services—
have suffered an injury in fact sufficient to confer standing. See
To-Ro Trade Shows v. Collins, 144 Wn.2d 403, 414, 27 P.3d
1149 (2001) (standing could involve showing “demonstrably
direct or substantial financial harm”); Seattle Sch. Dist., 90
Wn.2d at 493–94 (“actual financial constraints” on school
district’s ability to provide constitutionally adequate education
supported standing); City of Seattle, 103 Wn.2d at 669
(describing same).
In sum, the Counties’ interests are within the zone of
interests protected by the federal and state equal protection and
due process clauses, and they have demonstrated sufficient
61
factual injury. The Counties thus have standing on this
additional and independent ground.
3. Adequacy of the State’s Indigent Defense Scheme
Is an Issue of Serious Public Importance
Warranting Standing.
Even if the Counties’ standing is just a “close call,”
standing requirements are applied more liberally where, as here,
there is an issue of “serious public importance.” Wash. State
Hous. Fin. Comm’n, 193 Wn.2d at 718–19 (even if it is unclear
whether a party meets the zone of interests or injury in fact
requirements, public importance of the issues raised weighs in
favor of finding standing); City of Snoqualmie, 187 Wn.2d at
296 (same). While the Counties meet the UDJA standing test as
set forth above, the issues here are of such obvious public
importance that the Court can and should find standing on this
additional ground.
Following Gideon, there is no dispute that the right to
counsel is “a fundamental right, inherent in due process,”
Kanistanaux, 68 Wn.2d at 654, and a cornerstone of “any
62
meaningful modern concept of ordered liberty.” State v. A.N.J.,
168 Wn.2d 91, 96, 225 P.3d 956 (2010). “[I]n Washington, as
in other jurisdictions, the right to counsel is of paramount
importance to all persons appearing in our courts and must be
jealously guarded.” City of Seattle v. Ratliff, 100 Wn.2d 212,
218, 667 P.2d 630 (1983).
There also can be no dispute that the indigent defense
statutory scheme the State set up to fulfill Gideon’s mandate is
in crisis. Less than three months after the Counties filed this
lawsuit, OPD director Larry Jefferson issued a memorandum to
this Court making an “Urgent Request for Moratorium and
Reform in the Public Defense System.” CP 217. Asserting that
the indigent defense system is “facing a grave crisis” and “on
the verge of collapse,” Mr. Jefferson “implore[d]” this Court to
take the drastic step of restricting the appointment of counsel
for indigent defendants. Id. Among other things, Mr. Jefferson
explained that low pay and high caseload standards had caused
an “Exodus of Experienced Public Defenders,” some of whom
63
resigned due to their “inability to . . . affirm their compliance
with our current standards while simultaneously providing
constitutional and ethical assistance of counsel.” CP 218 . He
further noted that “the ones bearing the brunt of this crisis are
the individuals constitutionally and statutorily entitled to
effective counsel.” CP 220. According to Mr. Jefferson,
“defendants [are] languishing in jails without counsel or being
forced to return to court monthly to learn they still don’t have a
lawyer.” Id.
Mr. Jefferson’s recent observations that Washington’s
indigent defense system is underfunded and failing its
constitutional mandate are reflected in numerous reports,
studies, and news articles published over decades that describe
soaring costs, minimal State support, and the impacts to both
counties and indigent defendants of a failing system. See supra,
Section III.C; see also CP 20–29, 263–956; Daniel Beekman,
WA’s Public Defender System Is Breaking Down, Communities
Reeling, Seattle Times (Feb. 25, 2024),
64
https://www.seattletimes.com/seattle-news/politics/was-public-
defender-system-is-breaking-down-communities-reeling/
(noting “cash-strapped counties are watching their expenses
soar with minimal support from the Legislature” and describing
people “languishing in jail without counsel”); Toolis, supra n. 3
(due to discrepancies in how much counties spend on public
defense, “‘rights are being violated right now for people who
can’t get their case investigated’” (quoting OPD director Larry
Jefferson)); Jerry Cornfield, ‘Verge of Collapse’: Washington
Public Defenders Swamped by Cases, Washington State
Standard (Jan. 23, 2024),
https://washingtonstatestandard.com/2024/01/23/verge-of-
collapse-washington-public-defenders-swamped-by-cases/
(“‘[OPD director Larry Jefferson’s] letter lays it out pretty
clearly that there has been significant and unacceptable delays
in appointment of counsel for people accused of crimes’”
(quoting Chief Justice González)).
65
Compounding these harms, it is well established that, like
other elements of the criminal justice system, systemic
deficiencies in the State’s system of providing indigent defense
disproportionately impact marginalized communities. See
Caroline Wolf Harlow, U.S. Dep’t of Justice, Defense Counsel
in Criminal Cases 9 (2000),
https://bjs.ojp.gov/content/pub/pdf/dccc.pdf (finding Black and
Hispanic 14 inmates were more likely than white inmates to have
public defenders or assigned counsel); Research Working Grp.,
Task Force on Race and the Criminal Justice Sys., Preliminary
Report on Race and Washington’s Criminal Justice System, 35
Seattle U. L. Rev. 623, 627 (2012) (“The fact of racial and
ethnic disproportionality in our criminal justice system is
indisputable.”); In re Disciplinary Proceeding Against Michels,
150 Wn.2d 159, 174, 75 P.3d 950 (2003) (“The rights of the
14 The Counties use the term “Hispanic” because that is the
term used in the referenced study.
66
poor and indigent are the rights that often need the most
protection.”).
Consistent with the extensive body of evidence
demonstrating a failing system, this Court itself has
acknowledged systemic problems with the State’s indigent
defense scheme. In Davison, Chief Justice González stated:
“The State has known for a long time that delegating primary
responsibility for public defense to local governments has often
led to the systematic deprivation of effective assistance of
counsel.” 196 Wn.2d at 304 (González, J., concurring). And ten
years before Davison, this Court expressed concern about our
system of public defense:
45 years after Gideon, we continue our efforts to
fulfill Gideon’s promise. While the vast majority
of public defenders do sterling and impressive
work, in some times and places, inadequate
funding and troublesome limits on indigent counsel
have made the promise of effective assistance of
counsel more myth than fact, more illusion than
substance. Public funds for appointed counsel are
sometimes woefully inadequate, and public
contracts have imposed statistically impossible
case loads on public defenders and require that the
67
costs of experts, investigators, and conflict counsel
must come out of the defenders’ own already
inadequate compensation.
A.N.J., 168 Wn.2d at 98 (emphasis added); see also id. at 119
n.18 (“While our description of [the public defender’s]
performance is unflattering, our concern is focused on the
system he and other public defenders have been asked to work
under . . . .”) (emphasis added). Since then, these problems
have only worsened. As this Court stated in State v. Waits, 200
Wn.2d 507, 521, 520 P.3d 49 (2022): “It goes without saying
that the criminal legal system disproportionately affects the
poor and people of color.”
Even the trial court and the State below acknowledged
these concerns. The trial court correctly noted “there are serious
challenges facing our system of providing indigent criminal
defense in this state” and these issues require “the attention and
focus of players across the system and state.” CP 1034, 1038.
And the State itself admitted public defense is a “multifaceted
problem” as to which there are “very real concerns” and agreed
68
that “there’s plenty in the record that there are challenges with
public defense in this state, certainly.” RP (Mar. 22, 2024) at
41:19–22, 47:21–23.
Washington’s counties—as the providers and funders of
indigent defense under the State’s system of delegation—stand
“at the very vortex” of the entire indigent defense system.
Seattle Sch. Dist., 90 Wn.2d at 494. Counties must balance
ballooning indigent defense costs against other critical expenses
in the face of persistent revenue shortages and chronic
underfunding by the State. And county residents ultimately pay
the price, both in taxpayer dollars and in reduced or eliminated
services. As such, counties are uniquely situated to litigate
whether the statutory scheme “systemically fails to provide
[them] . . . with the authority and means necessary to furnish
constitutionally adequate indigent public defense services.”
Davison, 196 Wn.2d at 300. Limiting systemic challenges to
indigent defendants—as the trial court’s order effectively
does—would unfairly silence the perspectives of the local
69
governments struggling to navigate a crisis of the State’s
making.
Moreover, requiring indigent defendants to challenge a
statewide funding problem is both illogical and unfair. Citing
Davison, the trial court justified this result on the ground that
such defendants “can and have” brought similar challenges in
the past. CP 1037. In doing so, the trial court ignored the
financial and structural barriers that make it difficult for
indigent defendants—who by definition lack resources to hire
an attorney, see RCW 10.101.010(3) (defining “Indigent”)—to
navigate the legal system. See State v. Blazina, 182 Wn.2d 827,
835–39, 344 P.3d 680 (2015) (indigent defendants are
disproportionately burdened by legal financial obligations).
That indigent defendants sometimes overcome these barriers on
their own behalf does not diminish the obstacles for future
plaintiffs who would have to bring a class action on behalf of
all indigent defendants in the State. Indeed, the Davison class
(juveniles pending pretrial in Grays Harbor County) chose not
70
to pursue a statewide systemic claim and voluntarily dismissed
its suit. CP 159–60, 163. Vesting a hypothetical class of
indigent defendants with exclusive standing to challenge these
systemic failures will only ensure that the “grave crisis” facing
the indigent defense system continues unabated.
Whether the State’s current statutory scheme
systemically fails to provide counties with the authority and
means necessary to furnish constitutionally adequate indigent
defense services has broad implications raising issues of serious
public importance that warrant finding the Counties have
standing here. See, e.g., Wash. State Hous. Fin. Comm’n, 193
Wn.2d at 719 (affordable housing and economic implications of
interfering with housing commission’s ability to generate
revenue were issues of public importance supporting standing);
cf. McCleary, 173 Wn.2d at 513–14 (for purposes of direct
review under RAP 4.2(a)(4), whether the State was violating
article IX of the Constitution by failing to adequately fund K-12
71
schools presented a fundamental and urgent issue of broad
public import).
V. CONCLUSION
The Counties have standing to challenge the adequacy of
the State’s system delegating to them the obligation to provide
constitutionally mandated indigent defense services. This Court
should so hold, reverse the trial court, and remand for further
proceedings.
This document contains 11,387 words, excluding the
parts of the document exempted from the word count by RAP
18.17.
RESPECTFULLY SUBMITTED this 2nd day of July,
2024.
PACIFICA LAW GROUP LLP
s/ Paul J. Lawrence
Paul J. Lawrence, WSBA #13557
Ian D. Rogers, WSBA #46584
Sarah S. Washburn, WSBA #44418
Christopher M. Sanders, WSBA #47518
Attorneys for Appellants
PACIFICA LAW GROUP
July 02, 2024 - 4:50 PM
Transmittal Information
Filed with Court:Supreme Court
Appellate Court Case Number: 102,987-0
Appellate Court Case Title:Washington State Assoc. of Counties et al. v. State of Washington
Superior Court Case Number:23-2-02911-6
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