|
 |
|
 |
Domestic Violence (DV) and drug crime leap out as the categories with the most significant increases. Combined, these categories account for over half of the increase in referrals in 1998. We had expected an increase in DV crime. All local police agencies have stepped up their emphasis on domestic violence and have trained extensively on both the magnitude of the problem and how to effectively address it. I think it safe to say that we are not seeing an increase in the rate of domestic violence, we are simply uncovering what has been there all along. The increase in drug crime is another matter. The increase in the number of drug referrals to this office truly does reflect an increase in the amount of criminal activity. The large majority of these referrals concern the possession and delivery of methamphetamine, a felony. The use of this illegal substance is extremely destructive. Highly addictive, it leads its users into other criminal activity, like burglary and theft of mail (both counted in the Property Crime category), to support the habit. It is
1998 Year End Review
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1998 | 1997 | 1996 | 1995 | 1994 | 1993 | |
|---|---|---|---|---|---|---|
| Number of Criminal Referrals | 18,538 | 15,969 | 16,512 | 14,481 | 10,376 | 10,228 |
| Number of Criminal Filings | 11,974 | 11,067 | 11,529 | 9,223 | 5,567 | 5,698 |
| Number of Referrals Declined | 6,318 | 4,661 | 4,974 | 5,250 | 4,803 | 4,528 |
| % Referrals Filed | 65% | 69% | 70% | 64% | 54% | 56% |
| Final Legal Budget | $2,917,842 | $2,713,663 | $2,660,126 | $2,667,980 | $2,152,071 | $2,056,252 |
| Dollars per Criminal Filing | $244 | $245 | $231 | $289 | $387 | $361 |
| Dollars per Criminal Referral | $157 | $170 | $161 | $184 | $207 | $201 |
The number of cases referred to our office increased dramatically in 1998. Unfortunately, but inevitably, so did the portion of our budget devoted to operating expenses. In 1998, the portion of the criminal legal budget devoted to operating expenses was $390,477.29; in 1997 it was $301,123.02--an increase of $89,354.27, or almost 30%.3 We are looking carefully at this portion of the budget and will continue to attempt to keep our operatiing expenses down. However, most, If not all, of the increase is due simply to the costs associated with a greater number of cases coming through the door.
The percentage of those referrals that we charged as crimes decreased last year. There are no state or national standards for this measurement, and, as far as I know, we are the only prosecutor=s office that regularly keeps track of the percentage of referrals that we charge. We do this because the review and charging of reports of criminal activity--referrals--is the prosecutor=s critical function. We do
3 The remainder of this portion of the budget, $2,527,363.90, was devoted to salaries and benefits, items Controlled for the most part by collective bargaining agreements. It grew by only 4.34% over 1997
it also because it is the truest measure of our workload. Every referral means the creation of a file, a check of the named suspect=s criminal history, and a review of the facts of the case by a lawyer--a review that may lead to a request by our office that the law enforcement agency that generated the referral conduct follow-up investigation. All of this will be done whether we file the case or not. If, in analyzing our performance we only acknowledged filed cases, we would not account for all of our work.
Relying on the data from 1996 and 1997, we had assumed that 70% of referrals charged was a reasonable standard. We did not meet that standard in 1998. The table below tracks our charging performance back to 1989, the first year records were kept that enabled us to do this analysis.
| Overall Charge Analysis | Referrals | Charged | Declined | Pending | % Ref. Charged |
|---|---|---|---|---|---|
| 1989 | 6,624 | 4,007 | 2,617 | 0 | 60% |
| 1990 | 6,372 | 4,156 | 2,216 | 0 | 65% |
| 1991 | 9,165 | 5,977 | 3,187 | 1 | 65% |
| 1992 | 10,255 | 6,367 | 3,888 | 0 | 62% |
| 1993 | 10,228 | 5,698 | 4,528 | 2 | 56% |
| 1994 | 10,376 | 5,567 | 4,803 | 6 | 54% |
| 1995 | 14,481 | 9,223 | 5,250 | 8 | 64% |
| 1996 | 16,513 | 11,534 | 4,974 | 5 | 70% |
| 1997 | 15,986 | 11,139 | 4,830 | 17 | 70% |
| 1998 | 18,536 | 11,908 | 6,220 | 408 | 64% |
The decrease in charging percentage is due to many factors. We have identified the following as the most likely reasons:
First, we received more Ainformation only@ police reports, particularly in the domestic violence category. Awareness of domestic violence has risen substantially over the last few years. The Domestic Violence Task Force and the YWCA have also sponsored educational and advocacy efforts aimed at encouraging the reporting of domestic violence. Not every case is prosecutable. In addition, as our awareness has risen, law enforcement=s response to the problem has become more sophisticated. This office, in conjunction with the Kitsap County Sheriff=s Office and the Domestic Violence Task Force, has conducted extensive training of our local law enforcement agencies in domestic violence response. One of the
things we have asked the police agencies to do is to make a report every time they respond to a DV call, even if they don=t have enough evidence to make an arrest. With our record keeping system, we can look to these Ainformation only@ reports as history should an event occur in the future in that household that would justify a charge.
Second, and related to the first reason, enhanced victim services in the area of sexual assault have increased the number of reports. Harrison Hospital has stepped up to meet a need we have long felt in Kitsap County. Harrison now provides forensic medical examinations to victims of sexual assault. Before the Hospital began providing these services, victims-- particularly children--were referred to Tacoma to Mary Bridge Hospital, the closest provider of forensic sexual assault examinations. Many were told that their report would not be considered complete until they obtained that examination; many chose not to make the trip. The availability of local examination services has encouraged reporting. Not all cases reported are prosecutable.
Third, we saw more referrals as a result of the School Resource Officer program. Several schools in the county now have police officers stationed at the facilities while students are present. The programs have been very effective in interdicting drug use and in heading off violent confrontations. But we also receive reports of school yard fights and other minor disruptive behavior that is not best dealt with through a criminal prosecution.
Fourth, and probably most importantly, we handled 2,551 more cases with the same number of personnel. The heavy volume of reports forced us to spend less time with each. Because we had to spend less time with each, we sent out fewer Afollow-up@ requests to law enforcement-- a request that the reporting police agency do some more investigation. As the volume of referrals has increased, so has the pressure to either file or decline--letting the case sit while we waited for follow-up has been discouraged in all but the most serious cases.
The following tables break down our charging performance in the categories of Assault, Drug Crime, Domestic Violence, Property Crime (this category includes theft and burglary), and Rape.
Assault: This category includes what used to be called Simple Assault, now Fourth Degree Assault, up through First Degree assault -- assault producing great bodily harm. This category does not include Domestic Violence assault; we count that separately. By far the largest number are the Fourth Degree assaults: the unwanted touchings and shovings that can occur in a dispute but that cause little or no bodily injury. Because most behavior in this category results from a disagreement between two people, it is often difficult to determine who, if anyone, should be charged because it is difficult to determine who started it This is particularly true when the assault occurs in the context of a schoolyard fight--a referral we are seeing more of because of the increase in the number of police officers assigned to schools. Further complicating our job is Washington=s liberal law of self-defense, requiring the prosecution to disprove, beyond a reasonable doubt, that the defendant was acting in self defense. Because of these factors, our charging percentage has traditionally been relatively low in this category, but it got even lower last year. I attribute most of this decrease in performance to
our increased workload. These are the cases most often in need of follow up investigation if we are to charge. We simply have not had the time to wait for that to be done. We cannot say that our lower charging percentage means that fewer criminal assaults occurred last year. We can say only that we have been able to charge fewer with the resources at hand.
| Assault | Referrals | Charged | Declined | Pending | % Ref. Charged |
|---|---|---|---|---|---|
| 1989 | 392 | 197 | 195 | 0 | 50% |
| 1990 | 567 | 293 | 274 | 0 | 52% |
| 1991 | 975 | 534 | 441 | 0 | 55% |
| 1992 | 1,088 | 545 | 543 | 0 | 50% |
| 1993 | 1,088 | 488 | 600 | 0 | 45% |
| 1994 | 1,072 | 472 | 600 | 0 | 44% |
| 1995 | 1,187 | 616 | 569 | 2 | 52% |
| 1996 | 1,620 | 888 | 732 | 0 | 55% |
| 1997 | 1,421 | 746 | 672 | 3 | 52% |
| 1998 | 1,482 | 665 | 774 | 43 | 45% |
Drug Crime: This category includes all the arrests for possession and distribution of controlled substances other than tobacco and alcohol. In some ways our drug charging performance in recent years shows the flip side of the issues we face in dealing with assault. Where most assaults are misdemeanors (by definition minor crimes), most drug cases are classified as felonies. Where most assaults involve two or more people in some kind of dispute, necessitating a choice between stories offered up by parties who may all be offenders, a drug arrest most often results from a police officer observing and seizing drugs possessed by the offender. Unless there is some legal issue about the way the officer made the arrest or seizure, the evidence is usually very straightforward and compelling. There is seldom any need for follow up investigation other than a test of the drugs to identify what kind of controlled substance they may be. The cases come to us whole, they are by definition very serious, and if we get to them in a timely fashion, we can much more often than not make a prosecutable case. Even though we suffered a very substantial increase in the number of drug referrals, we continued to increase our charging percentage.
The larger issue, of course, is why the number of drug referrals grew so dramatically in 1998. There were no major, targeted law enforcement efforts like we have had in years past. The increase in the number of cases referred to the system for prosecution truly represents an increase in drug activity. Most of it is related to methamphetamine; most of what is caught ends up before the Superior Court
as a felony prosecution. And we are not alone. Most other western Washington counties have seen similar increases.
| Drug Crime | Referrals | Charged | Declined | Pending | % Ref. Charged |
|---|---|---|---|---|---|
| 1989 | 457 | 267 | 190 | 0 | 58% |
| 1990 | 311 | 185 | 126 | 0 | 59% |
| 1991 | 292 | 151 | 141 | 0 | 52% |
| 1992 | 393 | 227 | 166 | 0 | 58% |
| 1993 | 647 | 288 | 359 | 0 | 45% |
| 1994 | 810 | 382 | 418 | 1 | 47% |
| 1995 | 986 | 599 | 387 | 0 | 61% |
| 1996 | 1,026 | 774 | 252 | 0 | 75% |
| 1997 | 965 | 765 | 200 | 0 | 79% |
| 1998 | 1,401 | 1,115 | 257 | 29 | 80% |
As part of our efforts to meet this increase, we have explored alternatives to straight prosecution. We sponsor a program offering first time, small time, local offenders the option to have what would otherwise be a felony handled as a misdemeanor. Since the program began in 1996, we have put 35 people into the program; two have failed out. In what we hope will take a more substantial bite out of the drug problem, the Superior Court started a Drug Court in February of this year. This program offers more serious drug offenders a chance to take treatment. It is federally funded, for now, and follows a model employed throughout the country. The program is closed to violent and sex offenders and drug dealers. If the offender confesses, he or she can enter a treatment program rather than serve time in jail. If we can show a success rate similar to that enjoyed in other jurisdictions using the Drug Court model, we may achieve substantial future savings by diminishing the number of repeat offenders.
adopted specific standards for the prosecution of DV. And we have participated in extensive training efforts aimed at making our line law enforcement officers better able to investigate DV assaults while being sensitive to the needs of victims. The table below shows our charging performance back to 1989.
| Domestic Violence | Referrals | Charged | Declined | Pending | % Ref. Charged |
|---|---|---|---|---|---|
| 1989 | 530 | 292 | 238 | 0 | 55% |
| 1990 | 392 | 173 | 219 | 0 | 44% |
| 1991 | 450 | 227 | 223 | 0 | 50% |
| 1992 | 536 | 213 | 323 | 0 | 40% |
| 1993 | 641 | 211 | 430 | 0 | 33% |
| 1994 | 691 | 272 | 418 | 1 | 40% |
| 1995 | 1,124 | 598 | 525 | 1 | 53% |
| 1996 | 1,343 | 810 | 532 | 1 | 60% |
| 1997 | 1,933 | 1,125 | 807 | 1 | 58% |
| 1998 | 2,683 | 1,236 | 1,420 | 27 | 46% |
The question has to be asked: if we are doing all that we have claimed, if DV is such a priority, why did our charging percentage go down so dramatically? The major reason is that we, along with the rest of the law enforcement and victim services community, have encouraged the reporting of all incidents, no matter how small. The more serious acts of domestic violence are often the culmination of an escalating pattern of abuse. Knowing that pattern through reports of prior incidents helps us identify who may be at risk and, at best, intervene before tragedy occurs. If nothing else, it can help make the case after the fact. Accordingly, we have received many more reports of conduct that could not support a prosecution. Although I can=t give a guarantee, I don=t think the pressure to get on with the next case has affected our DV charging that much. Through the SAU, we have had a small, select few lawyers review most of the DV files. Our instructions have been to charge aggressively: if the law and the facts would support a conviction, proceed even if the victim, usually the wife, has decided that she wants it to go no further. We have adopted as our ethic the principle that domestic violence is a crime against the community, not the individual. I have no reason to believe that we have failed to follow that ethic in our charging practice.
People need money to pay for methamphetamine and other controlled substances, and drug use is not consistent with holding down the kind of job necessary to support a habit. So people steal.
We also charged a significantly lower percentage of these referrals. The explanation is the same as for the decrease in our assault filing percentage: in reviewing a referral we have been less likely to spend the time necessary to turn it into a chargeable case because more are coming through the door at a faster rate. We simply cannot afford to spend the time it would take to charge more of the referrals.
| Property | Referrals | Charged | Declined | Pending | % Ref. Charged |
|---|---|---|---|---|---|
| 1989 | 849 | 491 | 358 | 0 | 58% |
| 1990 | 1,051 | 649 | 402 | 0 | 62% |
| 1991 | 2,364 | 1,690 | 674 | 0 | 71% |
| 1992 | 2,695 | 1,881 | 814 | 0 | 70% |
| 1993 | 2,466 | 1,521 | 945 | 0 | 62% |
| 1994 | 2,344 | 1,310 | 1,034 | 0 | 56% |
| 1995 | 3,036 | 1,927 | 1,109 | 0 | 63% |
| 1996 | 2,993 | 2,108 | 882 | 3 | 70% |
| 1997 | 2,841 | 1,966 | 871 | 4 | 69% |
| 1998 | 3,223 | 2,039 | 1,097 | 87 | 63% |
Fortunately, the increase in referrals reflects, I think, positive changes in our community. As was mentioned above, Harrison Hospital began providing forensic sexual assault examination services in mid-1997. Before Harrison stepped into this role, victims of sexual assault had to travel out of the county to get the kind of examination necessary to make a criminal case. Many chose not to take that extra step; many, when told of what the system would demand of them simply let the matter drop without following through with the report.
At the same time, and as an adjunct to the general increase in awareness of domestic violence, advocacy services generally, and law enforcement sensitivity to the needs of victims has increased. This, too, has in all likelihood contributed to the increase in reporting rate represented by the increase in referrals.
We will track this crime category from now on. If the reporting rate stabilizes, then we will be able to say with more confidence that the increase in rape referrals resulted from an increase in services to victims that enhanced the likelihood of reporting. However, if the rate of increase continues to climb, we will have to look hard for other causal factors.
| Rape | Referrals | Charged | Declined | Pending | % Ref. Charged |
|---|---|---|---|---|---|
| 1989 | 30 | 10 | 20 | 0 | 33% |
| 1990 | 36 | 10 | 26 | 0 | 28% |
| 1991 | 60 | 18 | 42 | 0 | 30% |
| 1992 | 58 | 10 | 48 | 0 | 17% |
| 1993 | 52 | 11 | 41 | 0 | 21% |
| 1994 | 43 | 8 | 35 | 0 | 19% |
| 1995 | 56 | 3 | 53 | 0 | 5% |
| 1996 | 56 | 15 | 41 | 0 | 27% |
| 1997 | 53 | 14 | 39 | 0 | 26% |
| 1998 | 117 | 26 | 87 | 4 | 22% |
The analyses offered above are based on reports generated by the database managed by the County to serve the needs of our office, the jail, and the Superior Court. It counts things like number of referrals, number of charges, number of inmates, and number of trials pretty effectively. However, it can=t get take us very far into an analysis of our performance after charging.
To develop some kind of picture of how we handled the cases after they were charged, we have in this administration kept our own database of adult felony dispositions. Maintaining this database is fairly labor intensive--so labor intensive that we have not been able to use it to analyze our
performance in the other courts we serve. We simply don=t have the staff to input all the data.5
Preliminary analysis of our felony dispositions in 1998 shows good things generally.
The changes in our disposition performance last year were consistent with what we saw in the charging analyses: the pressure of our increased caseload appears to be affecting how we handle the disposition of our cases.
The increase in our overall felony conviction rate suggests this. We can control conviction rate with our charging decisions. If we choose only to charge the cases that are easy to prove, we can make our conviction rate approach 100%. An increase of two percentage points may not be significant, but it is consistent with what we saw in the charging analysis. There we saw a decrease in the rate of charging, explained by the pressure to move on to the next case in order to keep up with the volume. This suggests that we are charging the easier, clearer cases. This should translate into a higher conviction rate, and it did.
The same phenomenon shows in the number of trials. We went from 51 in 1997 to 42 in 1998, a decrease of 17%. Again, this is a relatively small drop, but it is what we would expect to see if we are charging the easier cases. Most defendants will plead guilty if the case is clear from the outset. Only in the case of the most severe penalties do we see defendants taking cases to trial in the face of strong evidence. But strong, clear evidence will not be available in every case that should be charged. Thus, the number of trials is a mark of how aggressive our charging practice is. We apparently charged fewer cases knowing that trial would probably result.
The other parameters measured give unqualified good news. The vast majority of defendants plead guilty to the original charge. This shows that we have stuck to our policy of avoiding classic plea bargaining, the practice of reducing charges in exchange for a plea of guilty. Likewise, only a very
few of the cases we charge result in outright dismissal. Most of those that do result from our motion, done after an analysis of the evidence shows that we cannot and should not prevail at trial. The defense wins only a very small number of challenges to the legal sufficiency of our charges.
By definition, the felonies filed in Superior Court are the more serious crimes. But far more criminal activity is dealt with by the courts of limited jurisdiction: in Kitsap County District Court and Bremerton Municipal Court. In the Superior Court, felony world we measure caseloads by 10's. In the District and Municipal Courts we measure caseloads by the hundreds.
The table below summarizes our activity in the District Court in 1998, the first year we have been able to segregate the District Court numbers in our database. It shows our activity in a selected category of crimes; Assault, Driving Under the Influence, Harassment, Malicious Mischief, Obstructing Law Enforcement, and Criminal Traffic offenses (Reckless and Negligent Driving); and as a total. However, the total number does not include Fourth Degree Assault, DV; misdemeanor violations of protection orders; or any other domestic violence crime. Those matters are generally handled by the Special Assault Unit (SAU) and are tracked separately.
| Kits. Co. Dist. Ct. | Ass'lt | DUI | Harr. | Mal. Misch. | Obst. | Crim. Traff. | Total, Index | Total, All |
|---|---|---|---|---|---|---|---|---|
| 1998 Refs. | 384 | 983 | 93 | 151 | 82 | 1,891 | 3,584 | 6,039 |
| 1998 Chgs. | 148 | 978 | 27 | 75 | 73 | 1,832 | 3,133 | 4,966 |
It is readily apparent that DUI and the criminal traffic offenses account for most of our caseload. We fully expect this part of our caseload to increase with the implementation of the law lowering of the DUI breath alcohol standard from .10% to .08 %.
Since the middle of 1995, we have served as prosecutors in the Bremerton Municipal Court through a contract with the City. This arrangement has turned out well for all parties. We can add the Bremerton cases to our database, giving us a better picture of criminal behavior in the County as a whole and of the individual offenders we deal with. Absent this arrangement, we would have no way of knowing the disposition of the cases charged in the Bremerton Court. We have benefited the City by providing skilled, experienced prosecutors and by taking advantage of the opportunities for coordinating the prosecution of offenders charged in both the County and City courts.
Last year we noted a decrease in the number of criminal referrals from the Bremerton Police Department. We attributed the decrease to the emerging problem of overcrowding in the County jail, a limitation that constrained the ability of the police throughout the County to interdict misdemeanor
and gross misdemeanor activity by making arrests. The overcrowding problem has only gotten worse, although relief is in sight. The voters of the County have approved a sales tax levy to expand the jail. We expect more space to be available within two to three years. In the meantime, we make do with what we have. This means that the police of all agencies have to consider whether space is available before they make an arrest. Because we have less space than is necessary, we have fewer misdemeanor arrests. And fewer misdemeanor arrests means fewer referrals to municipal court. As is shown in the chart below, the trend continues. The good news is that the rate of decline in referrals appears to have leveled off.
| Brem. Muni. Ref. | Ass'lt | DV | DUI | Harr. | Mal. Misch. | Obst. | Crim. Traff. | Total, Muni. Index | Total, All Ref. |
|---|---|---|---|---|---|---|---|---|---|
| 1996 | 472 | 483 | 204 | 21 | 168 | 160 | 577 | 2,085 | 3,472 |
| 1997 | 336 | 474 | 128 | 37 | 119 | 118 | 445 | 1,657 | 2,759 |
| 1998 | 270 | 432 | 122 | 11 | 100 | 126 | 475 | 1,536 | 2,703 |
| Differ- ence (96-98) | (202) | (51) | (82) | (10) | (68) | (34) | (102) | (549) | -769 |
The Juvenile Courts differ fundamentally from the adult system in that when juveniles are charged with crimes, the system looks to their rehabilitation as well as their punishment. Because we are dealing with children, the system assumes that we have both the obligation and the opportunity to try to change their behavior rather than simply punish it. Consequently, we consider our work there sufficiently important to justify a separate division reporting directly to the Prosecutor.
The table below summarizes our charging activity in the Juvenile Court. It shows our increase in criminal referrals to only be moderate: approximately seven percent. Our charging percentage declined slightly, and remains below the proportion charged in the adult courts. There are a couple of factors that contribute to the lower charging percentage. First, many juvenile crimes occur with juveniles as the only witnesses. This factor makes the stories of the witnesses more ephemeral--they are more likely to change with the telling--and therefore less likely to support a criminal charge. Second, this year and last saw an increase in the number of police officers assigned to schools. These officers are generating more Ainformation only@ reports, reports that do not describe criminal activity but that may lay a foundation for future interventions.
| Juvenile Court | Referrals | Charged | Declined | Pending | % Ref. Charged |
|---|---|---|---|---|---|
| 1996 | 3,965 | 2,613 | 1,352 | 0 | 66% |
| 1997 | 4,057 | 2,551 | 1,411 | 95 | 63% |
| 1998 | 4,355 | 2,718 | 1,502 | 135 | 62% |
An appeal is a challenge of a judge=s ruling. If the ruling complained of was made by a District or Municipal Court judge, the appeal is to the county Superior Court. If the complaint is that a Superior Court judge committed error, the challenge is generally made first in the Court of Appeals and then can be carried on to the Supreme Court. Our appellate practice consists primarily of defending the convictions we have obtained. A defendant convicted at trial can always find some grounds for challenging his or her punishment.7 Sometimes we are the appealing party, challenging a ruling that, in our opinion, wrongly limits the evidence we can produce or the punishment we seek.
The appellate workload has increased in virtually all areas. Below is a summary of the number and type of appeals that the Kitsap County Prosecuting Attorney=s Office has opened in 1998 as compared with 1997. (ACollateral attack@ is the term describing a challenge made by a defendant after exhaustion of the regular channels of appeal. It is most often used in the very serious cases.)
| &NBSP | TOTAL APPEALS | LOWER COURT APPEALS | SUPERIOR COURT FELONY APPEALS | JUVENILE APPEALS | COLLATERAL ATTACKS | AMICUS CURIAE |
|---|---|---|---|---|---|---|
| 1997 | 63 | 16 | 35 | 8 | 6 | 2 |
| 1998 | 102 | 45 | 43 | 5 | 10 | 1 |
Advisory Case Processing Time Standards have been endorsed by the Board for Judicial Administration for RALJ (appeals from Courts of Limited Jurisdiction--the District and Municipal Courts) appeals. These standards mandate the following filing-to-resolution time standards for RALJ appeals: 90 percent should be completed within 4 months, 98 percent completed within 5 months, and 100 percent completed within 6 months. Delays in meeting these benchmarks can occur when defendants do not file their briefs in a timely manner, when transcriptionists are backlogged, or when a court takes a case under advisement for a lengthy period of time.
Our office instituted a policy of aggressively monitoring RALJ appeals to ensure prompt filing of briefs in 1997. Motions to compel compliance with the court rules are brought in every appropriate case. The 1997 Caseloads of the Courts of Washington report is the first report to include data regarding how well counties are meeting these benchmarks. Statewide, Kitsap County ranked number four overall and number one among the eight counties with the largest number of new RALJ filings in 1997. The policy begun in 1997 has been continued in 1998. As a result, 32 of the 45 RALJ appeals that were filed in 1998 have already been completed in the Superior Court.
This past year has resulted in some victories and some losses for our appellate unit. Two cases were issued by the Court of Appeals that strengthen our ability to protect public servants and judges from the threat of paper terrorism. See State v. Knowles, 91 Wn. App. 367 (1998) (intimidating a judge predicated upon threats of contempt orders in the common law court and threats of criminal charges in the common law court); State v. Stephenson, 89 Wn. App. 794 (1998) (intimidating a public servant predicated upon the filing of liens). Public safety was enhanced in City of Bremerton v. Spears, 134 Wn.2d 141, 949 P.2d 347 (1998), when the Washington Supreme Court upheld the mandatory motorcycle helmet law.
The Washington Supreme Court dramatically rewrote the rules governing consent searches of homes in State v. Ferrier, 136 Wn.2d 103 (1998). Information regarding how to implement the changes was sent to all Kitsap County law enforcement agencies within days of the opinion. This speed hopefully
prevented the suppression of evidence in new investigations.
The Washington Supreme Court, in a 5 to 4 opinion, held that nonjudicial punishment administered by the military authorities will preclude subsequent civilian prosecution under our state=s double jeopardy statute. See State v. Ivie, 136 Wn.2d 173 (1998). Corrective language has been proposed and a bill was recently introduced in the Washington Legislature that will abrogate this decision.
The division enjoyed a year of stability in terms of attorney and support staff and client assignments. It has become a cohesive unit which works together easily, confidently and effectively. The year also provided challenges for experienced and less experienced attorneys alike, and most would regard 1998 as a year of real professional growth for themselves and, by extension, for the division.
The table below summarizes how our civil work load changed in 1998.
| Client | Increase or Decrease in Hours | % Increase or Decrease |
|---|---|---|
| Public Works | 264 | +29% |
| Risk Management | 1273 | +59% |
| DCD | 724 | +83% |
| Assessor | 327 | +130% |
| Sheriff | 316 | +359% | Risk Management - Hazardous Waste | (369) | -44% |
| Fair and Parks | (256) | -51% |
| Boundary Review Board | (248) | -86% |
Most of the increases and decreases are easily accounted for. Attorneys for the Public Works Department spent many hours working with their clients on the Solid Waste Management Plan and a possible solid waste disposal district, as well as revisions to improve the Stormwater Ordinance.
The County also received a increased number of damage claims related to stormwater last year, and the division spends a considerable amount of time on such claims when they first come in. The hours for Risk Management increased because of the significant increases in litigation. The Department of Community Development spent much of the year devoted to revising the County=s comprehensive plan and development regulations to comply with the state Growth Management Act, and this work required a great deal of attorney time. Many of the Assessor=s hours are attributable to the successful suit we brought on behalf of her and other assessors in the state challenging part of Referendum 47 (summarized below). And the increase in hours for the Sheriff=s Office was probably attributable to both the extensive amount of litigation involving that office and to the period of transition they experienced last year.
With interim urban growth areas in place, there were few annexations last year, which contributed to the Boundary Review Board=s decrease in attorney hours. I expect that trend to reverse this year, now that the county=s comprehensive plan is in place. The hazardous waste hours were down for Risk Management because the year was largely devoted to successfully settling the county=s longstanding hazardous waste insurance case (summarized above), rather than to preparing for trial. And the Fair and Parks Department was also undergoing a period of transition during much of 1998 which involved a focus on the basics and required little legal input.
Tort cases in 1998 required the time equivalent of approximately 1 1/3 attorneys. One of the more unusual tort cases arose from the service of an out-of-state arrest warrant by county sheriff=s deputies. The case was actually two companion cases involving the man arrested by the deputies and his girlfriend, with one case being filed in federal district court and the other in Pierce County Superior Court. The plaintiffs both alleged civil rights violations and various state tort claims. The county filed motions for summary judgment in both cases, prevailed in both, and successfully opposed motions for reconsideration in both. The two cases are now on appeal, one in the 9th Circuit Court of Appeals and the other in Division Two of the Washington Court of Appeals.
In other litigation, the division successfully represented the Kitsap County Assessor, who took the lead in an action brought by ten counties in the Washington Supreme Court challenging the property
tax Avalue averaging provision@ of Referendum 47, which was passed by the voters in 1997. The challenged provision was a technique to shift taxes from rapidly appreciating properties to those where the values are rising more slowly, or not at all. In a unanimous decision, the State Supreme Court declared value averaging a violation of the constitutional requirement that property taxes be uniform, and directed the state department of revenue not to implement it. The decision was a victory for the average homeowner. (Belas v. Kiga, 135 Wn.2d 913 (1998)).
In 1998, the County also successfully resolved longstanding litigation with its former insurance carriers over coverage for the clean-up of three former landfills and several related personal injury lawsuits. This office began to take a more active role in overseeing the case, and the management of outside counsel, at the beginning of this administration. After years of little movement on the case, the County changed outside counsel and began to negotiate settlements with the insurers. Last year, the County agreed to mediate with the remaining twelve insurers for a global settlement. After four months, the parties agreed to a substantial settlement sum, which the county believes will cover its costs for cleanup of the three sites, including the relocation of residents of a mobile home park, as well as other related costs.
Last year also saw the culmination of four years of work on the County=s comprehensive land use plan and development regulations adopted pursuant the state Growth Management Act. The first two plans, adopted in 1994 and 1996, were appealed to the Growth Management Hearings Board, and both were invalidated. In 1998, the civil division worked closely with the County=s Department of Community Development, and with a respected land use consultant hired by the commissioners, to overhaul the plan. The plan and regulations were adopted in May. By the end of the appeal period, 26 parties had filed petitions for review of the plan and regulations with the Hearings Board, in a case which ultimately encompassed nearly eighty issues. The Hearings Board itself described the proceedings in the case as Aunparalleled in their magnitude and complexity.@ Given the magnitude of the case and the County=s confidence in this plan, the commissioners agreed with the civil division=s suggestion that the division associate private counsel on the defense. The defense entailed hundreds of hours in review of the record and briefing and arguing the county=s case to the Hearings Board. The reward was a decision issued early this year: For the first time in four years, the County has a valid comprehensive land use plan and implementing regulations.
Of the 139 active civil cases in 1998, we handled all but 14 entirely within the division. One case which was sent to outside counsel after budget cuts within the civil division in 1996 remained with outside counsel. Two other tort cases were sent to outside counsel at the request of the Washington Counties Risk Pool, which expressed concern about our litigation team being stretch too thin by the bulge in the County=s active cases last year. And the County's hazardous waste insurance case, and two related cases, have also been handled largely by outside counsel, although with more oversight from the civil division than in the past. In the remaining 8 cases where private counsel were assigned, they were acting as co-counsel and/or advisors, with civil deputies handling at least half of the work on the cases.
The civil division has continued to build its "litigation group", with the office=s primary litigator
reviewing much of the work of two less experienced attorneys who are responsible for part or all of several litigation cases. We have made significant strides in training our own litigators, which will enable the division to continue to handle the county's litigation in-house, at great savings.
The division benefited greatly last year from our motivated and skilled legal assistants. One has completed her basic paralegal training and continues to support much of the litigation in the office. We are hopeful that she can take on full paralegal duties sometime this year. Another legal assistant has taken on more responsibility for the daily functioning of the office and its systems. She has been instrumental in setting up the division=s brief bank and its bank of legal opinion memos, and has played a key role in working with a consultant to get the division=s time keeping system converted to an electronic format.
The goals for the upcoming year will mirror those of the state Division of Child Support. Federal funding incentives are now tied to the percentage of collections on existing orders and to cost effectiveness. At the local level this means that we must focus on obtaining realistic judgements for back support, and recognizing when orders may need to be referred for modification or to administrative conference boards for adjustment of arrearages.
An additional goal of the child support division is to concentrate on more aggressive collection of arrearages in the contempt caseload. We hope to impress upon the bench, bar and public in general, the importance that both the federal and state government has placed on collection of outstanding child support obligations. With the passage of the Deadbeat Parents Punishment Act of 1998, which adds new penalties for egregious failure to pay child support, and the creation of a national new hire directory for locating parents and employers across state lines, the government has sought to send the strongest possible message that parents cannot walk away from their children, and has emphasized that increased child support collection is a top priority. The child support division is committed to carrying out that program.Over the last four years this office has earned the right to refer to itself as a first-rate, professional law firm. We have identified and addressed most of the systemic problems that stood in the way of discharging our duties as an office. We believe that we have done what we can to live up to our Mission Statement.
However, what 1998 showed us is that systemic change, reshuffling and juggling assets to squeeze out more performance, has limits. The increase in criminal referrals last year stretched us to, and perhaps beyond, those limits. Our goal for next year therefore becomes procuring what it will take to meet our obligations.
We will, of course, continue to push our organization toward greater efficiencies. For example, at the start of 1999 we reorganized in order to give more immediate attention to criminal referrals. We continue to work with the Superior and District Courts to find ways to process criminal cases more effectively. We will maintain our ability to provide our clients with excellent service in our civil role. Our pledge is to do the best we can with what we have.
Russell D. Hauge Kitsap County Prosecuting Attorney
