Davison v. State

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE JUNE 25, 2020
SUPREME COURT, STATE OF WASHINGTON
JUNE 25, 2020
SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
COLLEEN DAVISON, legal guardian for
K.B., a minor, on behalf of themselves and
others similarly situated, and GARY
MURRELL, NO. 96766-1
Respondents,
v. EN BANC
STATE OF WASHINGTON and
WASHINGTON STATE OFFICE OF June 25, 2020
Filed ________________
PUBLIC DEFENSE,
Petitioners.
STEPHENS, C.J.—This class action cuts to the heart of Washington’s system
of indigent criminal defense. The plaintiff class sued the State of Washington and
the Office of Public Defense (OPD), alleging ongoing violations of the right to
counsel in Grays Harbor County Juvenile Court. They premise state liability not
only on alleged systemic, structural deficiencies in the state system, which currently
offers indigent public defense services at the local level, but also on the State and
Davison et al. v. State of Washington et al., 96766-1
OPD’s alleged knowledge of Grays Harbor County’s specific failures to safeguard
the constitutional right to counsel.
Our legislature has delegated the duty to enforce the right to counsel to local
governments—counties and cities. See generally ch. 10.101 RCW. While the State
bears responsibility to enact a statutory scheme under which local governments can
adequately fund and administer a system of indigent public defense, it is not directly
answerable for aggregated claims of ineffective assistance of counsel. Rather, to
prevail on their claims against the State, the plaintiff class must show that the current
statutory scheme systemically fails to provide local governments, across
Washington, with the authority and means necessary to furnish constitutionally
adequate indigent public defense services. Given that standard, we reject the
plaintiffs’ claims premised on the State and OPD’s alleged knowledge or awareness
of Grays Harbor County’s failure to provide adequate public defense services. Such
an allegation cannot support state liability even if we could fairly impute knowledge
or awareness of a particular county’s failings to the State. That said, the plaintiffs’
claims alleging systemic, structural deficiencies in the state system of public defense
remain viable. We therefore affirm the superior court’s denial of the State’s motion
for summary judgment in part on other grounds and remand for further proceedings
consistent with this opinion.
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FACTS
The plaintiff class sued the State and OPD under the Uniform Declaratory
Judgments Act, ch. 7.24 RCW, alleging ongoing, systemic violations of the right to
counsel taking place in Grays Harbor County Juvenile Court.
The superior court certified a class composed of:
“All indigent persons who have or will have juvenile offender cases pending
in pretrial status in Grays Harbor County Juvenile Court since April 3, 2017,
and who have the constitutional right to appointment of counsel.”
Clerk’s Papers (CP) at 557-58.
The plaintiffs’ complaint details several alleged cases of ineffective assistance
of counsel, including severe failings on part of the public defender(s) Grays Harbor
County contracted with to provide juvenile public defense services. “For example,
a 15-year-old was kept incarcerated while serving a sentence for probation violations
that was four times the length allowed by statute, and an 11-year-old child has spent
two months in the Grays Harbor Juvenile Detention Center without a capacity
hearing, also in violation of state law.” CP at 35. The plaintiffs contend that “[a]s a
direct result of systemic and structural deficiencies known to [the State and OPD],
juvenile public defense services in Grays Harbor County operate well below the
constitutionally required minimum.” CP at 34. The plaintiffs allege that the State
and OPD know Grays Harbor County’s system of juvenile public defense flouts
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recognized standards of constitutionally adequate indigent public defense, yet these
state actors have taken no steps to remediate the county’s failures.
The complaint sets forth three causes of action. Count 1 alleges violations of
the right to counsel under the Sixth and Fourteenth Amendments to the United States
Constitution. Count 2 alleges violations of the right to counsel under article
I, sections 3 and 22 of the Washington Constitution. And count 3 alleges
violations of state statutes—chapters 2.70 and 10.101 RCW—claiming these
statutes authorize OPD to take action to remedy a county’s constitutionally
deficient system of public defense. Among the relief requested, the plaintiffs ask
for a declaration that the State is ultimately “responsible for ensuring that public
defense systems in Washington State provide constitutionally adequate
representation to indigent criminal defendants, including in Grays Harbor
County’s juvenile public defense system.” CP at 59.
The State moved for partial summary judgment on the pleadings. It asked the
superior court to dismiss count 3, arguing the provision of indigent juvenile defense
is a county-level function and OPD lacks the statutory authority to compel Grays
Harbor County to remediate its system of indigent public defense. It also argued
Grays Harbor County is a necessary and indispensable party, requiring mandatory
joinder.
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Given the plaintiffs’ theory of state liability, the court ruled mandatory joinder
of Grays Harbor County was not required. Still, it dismissed count 3 of the
complaint, determining, “There is nothing in that statutory scheme that gives the
Office of Public Defense the authority to do what the plaintiffs have requested, even
assuming, as the complaint has alleged, that the defense services in Grays Harbor
County violated the constitution and that OPD was aware of that.” Verbatim Report
of Proceedings (VRP) (Nov. 3, 2017) at 19; CP at 389. The order did not address
counts 1 or 2, so the plaintiffs’ constitutional claims remained pending.
Near the close of discovery, the parties cross moved for summary judgment.
The plaintiffs again argued the State has the ultimate responsibility to safeguard the
right to counsel. They presented evidence, including six examples of ineffective
assistance of counsel, the county’s admissions of its public defense system
deficiencies, expert opinions concluding that the county’s juvenile public defense
system is unconstitutional, and declarations that OPD knew of the defects in the
county’s juvenile public defense system and failed to take oversight action.
According to the plaintiffs, “[t]he Constitution places on the State the ultimate duty
to remedy an unconstitutional public defense system that is known and obvious to
State officials. This mandate both requires and empowers the State, through OPD or
otherwise, to act and this Court should so hold as a matter of law.” CP at 155.
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In response, the State argued the plaintiffs sued the wrong party—the State,
rather than Grays Harbor County—and the State committed no constitutional
violations. The State emphasized that the legislature has the plenary power to
develop policy and determine the governmental functions that counties and cities
must perform. And given that the legislature delegated the duty to enforce the right
to counsel to local governments, the plaintiffs have no right to relief against the State,
which does not provide indigent juvenile defense services. The State also argued
the legislature has provided the necessary taxing authority for counties to fulfill their
statutory obligations, so the State cannot be held liable for the county’s failures. It
further claimed the plaintiffs lacked standing to sue the State and failed to state a
claim against OPD. Finally, the State asserted that without Grays Harbor County as
a party in the case, the court cannot reach whether Grays Harbor County provides
systemically deficient indigent juvenile defense services.
The superior court denied the State’s motion for summary judgment and
reserved ruling on the plaintiffs’ motion. The superior court opined in its oral ruling:
It is clear that the state has delegated operational responsibility for
juvenile defense to the counties, but the state cannot delegate its ultimate
constitutional obligation. I am moved by the authorities from other
jurisdictions that I believe are sufficiently similar to the facts at bar to believe
that this kind of suit may proceed even in the absence of a “cannot” situation,
which is what the state has articulated as the standard here. I believe that the
standard that should apply in this type of case is a knowing systemic violation
and that the type of relief that is⸺has been requested by the plaintiffs in this
case would be appropriate if the facts bore it out.
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VRP (Dec. 14, 2018) at 28.
The superior court certified that its order involved a controlling question of
law on which there is substantial ground for a difference of opinion, thus meriting
discretionary review under RAP 2.3(b)(4). The State sought discretionary review,
which we granted. The Washington State Association of Counties, the Juvenile Law
Center and National Legal Aid and Defender Association, and the National Juvenile
Defender Center filed amici briefs in support of the plaintiffs.
ANALYSIS
“We review summary judgments de novo.” State ex rel. Banks v. Drummond,
187 Wn.2d 157, 167, 385 P.3d 769 (2016). Summary judgment is proper only when
there are no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. CR 56(c). We also review constitutional questions and
issues involving statutory interpretation de novo. State ex rel. Banks, 187 Wn.2d at
167.
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. WASH.
CONST. art. I, § 22; U.S. CONST. amend. VI. The Sixth Amendment guarantees that
“[i]n all criminal prosecutions, the accused shall enjoy the right to . . . have the
assistance of counsel for his defense.” U.S. CONST. amend. VI. This fundamental
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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. Gideon v. Wainwright, 372 U.S. 335, 339-45, 83
S. Ct. 792, 9 L. Ed. 2d 799 (1963); State v. Jackson, 66 Wn.2d 24, 28, 400 P.2d 774(1965); State v. Kanistanaux, 68 Wn.2d 652, 654, 414 P.2d 784 (1966). The Sixth
Amendment similarly entitles juvenile defendants to fundamental due process,
including the right to counsel. State v. S.J.C., 183 Wn.2d 408, 424, 352 P.3d 749(2015) (citing In re Gault, 387 U.S. 1, 41, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967)).
And the Washington Constitution further guarantees “[i]n criminal prosecutions the
accused shall have the right to appear and defend in person, or by counsel.”1 WASH.
CONST. art. I, § 22.
The Washington Constitution divides our state government among three
coequal branches: the legislative department, the executive, and the judiciary.
WASH. CONST. arts. II, III, IV. It also establishes political subdivisions of the state,
including local governmental entities: counties, cities, towns. WASH. CONST. art. XI.
“Washington’s constitution, much like the federal constitution, does not contain a
formal separation of powers clause.” Carrick v. Locke, 125 Wn.2d 129, 134-35, 882
1
The plaintiffs and amici, including the Washington Association of Counties,
devote considerable analysis to arguing the right to counsel is a positive right. But we need
not reach this question to resolve this matter and decline to do so here.
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P.2d 173 (1994). Even so, the division of governmental duties into distinct branches
limits any one branch from encroaching on the power exercised by another. Seattle
Sch. Dist. No. 1 v. State, 90 Wn.2d 476, 506, 585 P.2d 71 (1978). That said, no
branch or political subdivision of government “operate[s] with absolute
independence.” Id. “[S]uch a rigid separation, while theoretically attractive, is
practically impossible, because a government is a unit, and its operation depends
upon the coordination of all parts to a common end.” William Howard Taft, The
Boundaries Between the Executive, the Legislative and the Judicial Branches of the
Government, 25 YALE L.J. 599, 600 (1916).
The “State” exists in all its branches and political subdivisions. See Seattle
Sch. Dist., 90 Wn.2d at 505-06 (concluding all three branches of government have
constitutional duties under article IX, not just the legislature). “Counties are political
subdivisions of the State.” Dolan v. King County, 172 Wn.2d 299, 312, 258 P.3d 20(2011). “Municipalities are political subdivisions of the State.” City of Seattle v.
State, 103 Wn.2d 663, 670, 694 P.2d 641 (1985). The State’s obligation to safeguard
the right to counsel therefore does not rest solely with the legislature, executive, or
judiciary. The State shares that responsibility among its various branches and
political subdivisions—including counties and cities.
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While Gideon directs the states to provide indigent public defense services, it
does not direct how the states must provide such services. Anthony C. Thompson,
The Promise of Gideon: Providing High-Quality Public Defense in America, 31
QUINNIPIAC L. REV. 713, 719 (2013). Thus, how states choose to deliver indigent
public defense varies from state to state. Id. “Some provide services through a large
countywide, city-wide, or statewide institutional defender office.” Id. “Others
employ a contract system, where multiple small to mid-size providers bid for
contracts to represent certain numbers of cases for a set price.” Id. Still, “[o]ther
jurisdictions employ an assigned counsel system, where the court appoints lawyers
from a list on a rotating basis to represent indigent clients charged with crimes.” Id.Many states use a combination of these systems. Id. These varied structural
approaches highlight the flexibility states have in providing indigent public defense.
State legislatures need not enact any specific statutory scheme to safeguard the right
to counsel. Just as in other contexts, the legislature has plenary power to develop
the policy, statutory structure, and funding it determines will best effectuate the
constitutional right. See Wash. State Farm Bureau Fed’n v. Gregoire, 162 Wn.2d
284, 300-01, 174 P.3d 1142 (2007) (stating the legislature has plenary power to enact
laws not prohibited by the state or federal constitutions).
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Still, “‘[i]t is emphatically the province and duty of the judicial department to
say what the law is.’” United States v. Nixon, 418 U.S. 683, 703, 94 S. Ct. 3090, 41
L. Ed. 2d 1039 (1974) (alteration in original) (quoting Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 177, 2 L. Ed. 60 (1803)). “Under our form of government it is the
right and duty of the judicial department to interpret the law and declare its true
meaning and intent. Equally, it is the right and duty of the executive department
[and political subdivisions of government] to see that the laws as thus interpreted are
properly enforced.” State ex rel. Hartley v. Clausen, 146 Wash. 588, 592, 264 P.
403 (1928). “Where the constitutionality of a legislative act is before this court, we
are bound ‘to lay the article of the Constitution which is invoked beside the statute
which is challenged and to decide whether the latter squares with the former.’”
Aetna Life Ins. Co. v. Wash. Life & Disability Ins. Guar. Ass’n, 83 Wn.2d 523, 527,
520 P.2d 162 (1974) (quoting United States v. Butler, 297 U.S. 1, 62, 56 S. Ct. 312,
80 L. Ed. 477 (1936)). “We are not a super legislature.” Id. at 528. “‘This court
neither approves nor condemns any legislative policy. Its delicate and difficult
office is to ascertain and declare whether the legislation is in accordance with, or in
contravention of, the provisions of the Constitution; and, having done that, its duty
ends.’” Id. (quoting Butler, 297 U.S. at 63). It is in this sense that we accord a
“heavy presumption of constitutionality” to “a legislative act.” Id.-11-
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Exercising its plenary power to enact laws, the legislature has delegated the
duty to provide indigent public defense services to local governments. See generally
chs. 10.101 (requiring local governments to provide indigent defense services),
36.26 RCW (granting local governments the authority to establish public defender
offices). Public defense services extend to “all persons wishing the appointment of
counsel in criminal, juvenile, involuntary commitment, and dependency cases, and
any other case where the right to counsel attaches.” RCW 10.101.020(1). “[W]hile
Washington allows a great deal of organizational flexibility in delivering public
services, the counties are the primary unit of local government and ‘generally handle
such state-directed functions as the administration of justice.’” Thurston County ex
rel. Snaza v. City of Olympia, 193 Wn.2d 102, 104, 440 P.3d 988 (2019) (internal
quotation marks omitted) (quoting City of Auburn v. Gauntt, 174 Wn.2d 321, 325,
274 P.3d 1033 (2012). Local governments have discretion on whether public
defense “services are provided by contract, assigned counsel, or a public defender
office,” though cities and counties must “adopt standards for the delivery of public
defense services.” RCW 10.101.030. These standards must include:
[c]ompensation 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, 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,
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qualifications of attorneys, disposition of client complaints, cause for
termination of contract or removal of attorney, and nondiscrimination.
RCW 10.101.030. The legislature recommends that the standards governing
indigent public defense promulgated by the Washington State Bar Association
(WSBA) should serve as guidelines to local authorities in adopting their own
standards.2 Id. Still, the legislature has not given authority to any statewide agency
to provide oversight on the administration of local indigent public defense services.
It delegated that responsibility to counties and cities by requiring them to adopt local
standards safeguarding the right to counsel. See id. For example, Standards for
Indigent Defense standard 11—governing monitoring and evaluation of attorneys—
should serve as a guideline for local governments adopting their own standards:
The legal representation plan for provision of public defense services should
establish a procedure for systematic monitoring and evaluation of attorney
performance based upon publicized criteria. Supervision and evaluation
efforts should include review of time and caseload records, review and
inspection of transcripts, in-court observations, and periodic conferences.
Performance evaluations made by a supervising attorney should be
supplemented by comments from judges, prosecutors, other defense lawyers
2
The WSBA provides a comprehensive guide to cities and counties providing
indigent public defense services. See generally Standards for Indigent Defense stds. 1-18
(available in compilations of the criminal and juvenile court rules following CrR 3.1;
CrRLJ 3.1; JuCR 9.2). Areas addressed include: compensation, duties and responsibilities
of counsel, caseload limits and types of cases, responsibility of expert witnesses,
administrative costs, investigators, support services, reports of attorney activity, training,
supervision, monitoring and evaluation of attorneys, substitution of counsel, limitations on
private practice, qualifications of attorneys, appellate representation, disposition of client
complaints, cause for termination of defender services and removal of
attorney, nondiscrimination, and guidelines for awarding defense contracts. Id.-13-
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and clients. Attorneys should be evaluated on their skill and effectiveness as
criminal lawyers or as dependency or civil commitment advocates.
Standards for Indigent Defense std. 11 (available in compilations of the criminal and
juvenile court rules following CrR 3.1; CrRLJ 3.1; JuCR 9.2).
If a county or city has failed to adopt, implement, and administer public
defense standards like the ones promulgated by the WSBA, we cannot hold the State
liable for the local government’s failure to comply with its statutory obligations. See
RCW 10.101.030. Instead, it is the duty of the executive—in this circumstance, the
local governmental entity tasked with providing public defense services—to carry
out the will of the legislature. See Clausen, 146 Wash. at 592.
Court rules also provide, “Before appointing a lawyer for an indigent person,
or at the first appearance of the lawyer in the case, the court shall require the lawyer
to certify to the court that he or she complies with the applicable Standards for
Indigent Defense Services.” CrR 3.1(d)(4); CrRLJ 3.1(d)(4); JuCR 9.2(d). Our
standards for indigent defense apply to any attorney appointed by the court to
provide public defense representation. See generally CrRLJ 3.1 stds. Among other
things, our standards require attorneys to certify to the courts that they comply with
caseload limits, meet minimal case-level qualifications requirements, have access to
an office, and use appropriate investigative services. Id. And these rules apply to
all attorneys providing indigent public defense services whether they are employed
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in county-based public defense offices, nonprofits, law firms contracting with a city
or county, or list attorneys who are sometimes appointed to represent indigent
defendants. See id. But again, we cannot hold the State liable when a particular
lawyer certifies to the court that they have complied with the applicable standards,
even if, in reality, the lawyer has not. Other remedies may be available in this
instance, including civil suits for malpractice or disciplinary action under the Rules
of Professional Conduct. Still, State liability does not follow from the individual
failing.
Moreover, the State does not directly fund indigent criminal defense services.
For local governments to fund their own systems of public defense, the legislature
provides counties and cities with taxing authority. See WASH. CONST. art. VII, § 9
(“[A]ll municipal corporations may be vested with authority to assess and collect
taxes.”). But “[t]he legislature shall have no power to impose taxes upon counties,
cities, towns or other municipal corporations, or upon the inhabitants or property
thereof, for county, city, town, or other municipal purposes.” WASH. CONST. art. XI,
§ 12. Instead, “by general laws, [it may] vest in the corporate authorities thereof,
the power to assess and collect taxes for such purposes.” Id. So whether to levy a
tax, the amount of the tax levied, and the allocation of tax revenue for indigent public
defense services are all policy questions committed to local governments (subject to
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the general laws granting local governments such authority). See Mun. of Metro.
Seattle v. O’Brien, 86 Wn.2d 339, 345, 544 P.2d 729 (1976). A local government’s
failure to avail itself of potential tax revenue does not itself suggest the legislature
has failed to provide the resources or means necessary to fund a constitutionally
adequate system of public defense.3 Nor is a local government’s failure to allocate
its resources equitably an issue giving rise to State liability. Without commenting
on the adequacy of funding, we recognize that the legislature has provided local
governments with taxing authority that can be used to fund public defense services.4
Acknowledging the local operational and taxing authority outlined above, the
legislature retains ultimate responsibility for drafting a statutory scheme that
sufficiently safeguards the constitutional right to counsel. It cannot abdicate its duty
in this regard, underscoring a critical area in which it may be subject to liability in
this case. To the extent that the plaintiff class has alleged systemic and structural
deficiencies in our state system delegating authority to local governments, that
3
This reflects “‘[t]he general rule . . . that counties are burdened with the cost of
administering the criminal laws within their boundaries and, in the absence of statutory
authority, are not entitled to reimbursement from the State.’” Thurston County ex rel.
Snaza, 193 Wn.2d at 104-05 (quoting State v. Agren, 32 Wn. App. 827, 828, 650 P.2d 238(1982)).
4
See generally RCW 84.52.043(1) (property tax levies), .135 (county levy for
criminal justice purposes); RCW 82.14.030 (local sales and use taxes), .340 (sales and use
tax for criminal justice purposes), .350 (sales and use tax for juvenile detention facilities
and jails), .450 (sales and use tax for counties and cities to protect the health and safety);
RCW 9.46.110 (taxation of gambling activities).
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allegation expresses a valid ground for State liability. But to prevail on this claim,
we hold the plaintiff class must show that the current statutory scheme systemically
fails to provide local governments, across Washington, with the authority and means
necessary to furnish constitutionally adequate indigent public defense services.
Further proceedings are needed below to determine the merits of that question, and
we do not decide here whether a genuine issue of material fact exists. See Burton v.
Twin Commander Aircraft LLC, 171 Wn.2d 204, 223, 254 P.3d 778 (2011) (“If the
plaintiff ‘fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof
at trial, then the trial court should grant’ the defendant’s motion for summary
judgment.” (internal quotation marks omitted) (quoting Right-Price Recreation,
LLC v. Connells Prairie Cmty. Council, 146 Wn.2d 370, 382, 46 P.3d 789 (2002))).
In contrast, the plaintiffs’ claims premised on the State and OPD’s knowledge
of county-level failings must be dismissed. The standard the plaintiffs propose does
not express a valid ground for State liability: “Where [the State has knowledge or
awareness of] an ongoing, systemic violation of the right to counsel, the State must
act to protect that right.” Resp’t’s Br. at 32. The plaintiffs claim that OPD knows
about an ongoing, systemic violation of the right to counsel in Grays Harbor County.
Id. at 29-33. Even if true, OPD’s knowledge or awareness does not trigger the
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asserted—yet amorphous—duty to act. The legislature has not granted OPD
superauthority to sweep in and remediate shortcomings in local governmental
functions when it has knowledge a particular county is inadequately providing trial
level indigent public defense services.
The legislature created OPD as an independent agency of the judicial branch
in 1996. LAWS OF 1996, ch. 221, § 1. It established the agency “[i]n order to
implement the constitutional and statutory guarantees of counsel and to ensure
effective and efficient delivery of indigent defense services funded by the state of
Washington.”5 RCW 2.70.005. Although OPD provides services related to indigent
public defense in some contexts, RCW 2.70.020, it plays a limited role in indigent
public defense at the trial level. See RCW 2.70.020(1)(a). Its trial level duties are
defined in chapter 10.101 RCW. Id. And that chapter limits OPD’s role to providing
supplemental funding to counties and cities through a grant program. RCW
10.101.070 (county moneys), .080 (city moneys). OPD also “[p]rovide[s] oversight
and technical assistance to ensure the effective and efficient delivery of services in
the office’s program areas.” RCW 2.70.020(4). But OPD’s program area for trial
5
This general policy statement does not create a duty on part of OPD to remediate
a local government’s failure to safeguard the right to counsel. E.g., Melville v. State, 115
Wn.2d 34, 38, 793 P.2d 952 (1990) (“‘[S]tatutory policy statements as a general rule do
not give rise to enforceable rights and duties.’” (quoting Aripa v. Dep’t of Soc. & Health
Servs., 91 Wn.2d 135, 139, 588 P.2d 185 (1978), overruled in part on other grounds by
State v. WWJ Corp., 138 Wn.2d 595, 980 P.2d 1257 (1999))).
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level indigent public defense is currently limited to its grant program.6 See generally
ch. 10.101 RCW. Thus, the superior court properly dismissed the plaintiffs’
statutory claims, as OPD has no statutory authority to remediate Grays Harbor
County’s alleged failings.
While state and local governments share responsibility for carrying out the
right to counsel, each unit of government has distinct duties. The relationship
between state and local government is not akin to agency law. The State is not a
“principal” legally responsible for the acts of its local government “agents” when
such acts occur within the scope of the local government’s delegated duty. Notions
of respondeat superior do not apply here. If we were to accept the plaintiffs’
proposed standard, it would theoretically apply to all rights and duties under the state
and federal constitutions. The ramifications of recognizing such a broad, state-level
duty extend far beyond the immediate context of indigent public defense, potentially
encompassing every area of shared constitutional responsibility between state and
local government. We reject the premise that the State’s knowledge or awareness
of one county’s failure to provide adequate indigent public defense triggers an ill-
defined state duty to act. We must respect the legislature’s plenary power to enact
6
Cf. RCW 2.70.020(1)(b) (appellate indigent defense), (c) (representation in
dependency and termination cases), (f) (representation in sexually violent predator civil
commitment cases).
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laws and the constitutional division of power between state and local government.
While we are not insensitive to claims of recurring and egregious ineffective
assistance of counsel in Grays Harbor County Juvenile Court, under our existing
system of public defense, it is the county, not the State, which must answer for its
failings.7
CONCLUSION
The legislature has plenary power to design the policy and statutory scheme
governing the delivery of indigent criminal defense services in Washington. The
current statutory scheme delegates authority to local governments to provide, fund,
and administer local systems of indigent public defense. While the plaintiffs’ claims
premised on alleged systemic, structural deficiencies in the state system of public
7
We recognize the prevalence of ineffective assistance of counsel in Grays Harbor
County might be a symptom of structural problems with our current state system governing
indigent public defense. But aggregated claims of ineffective assistance of counsel alone
cannot serve as the evidentiary basis for state liability. The plaintiffs have other remedies
available in their criminal cases. For example, some juvenile offenders may have their
convictions reversed. E.g., State v. Kitt, 9 Wn. App.2d 235, 442 P.3d 1280, review denied,
194 Wn.2d 1010 (2019) (reversing the offender’s conviction because counsel’s prior
representation amounted to actual conflict of interest that deprived the defendant of
effective assistance); State v. B.J.S., 140 Wn. App. 91, 169 P.3d 34 (2007) (a juvenile who
received ineffective assistance on a deferred disposition warranted reversal). Still others
may be put back in the position they would have been in absent the violation. E.g., State
v. Maynard, 183 Wn.2d 253, 351 P.3d 159 (2015) (directing the State to reoffer the initial
plea proposal of deferred disposition and remanding for further proceedings consistent with
the Juvenile Justice Act of 1977, ch. 13.40 RCW); State v. A.N.J., 168 Wn.2d 91, 225 P.3d
956 (2010) (holding a juvenile who received ineffective assistance of counsel could
withdraw his guilty plea to a sex offense).
-20-
Davison et al. v. State of Washington et al., 96766-1
defense remain viable, we dismiss all claims premised on the State and OPD's
alleged knowledge or awareness of Grays Harbor County's failure to provide
constitutionally adequate indigent juvenile public defense services. We therefore
affirm the superior court's denial of summary judgment in part on other grounds
and remand for further proceedings consistent with this opinion.
WE CONCUR:
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-21-
Davison et al. v. State et al., No. 96766-1 (González, J., concurring)
No. 96766-1
GONZÁLEZ, J. (concurring) —The constitutional right to effective
assistance of counsel is a cornerstone of “any meaningful modern concept of
ordered liberty.” State v. A.N.J., 168 Wn.2d 91, 96, 225 P.3d 956 (2010).
Almost a century ago, in the “Scottsboro Boys” case, the United States
Supreme Court observed that “the failure of the trial court to make an
effective appointment of counsel was likewise a denial of due process within
the meaning of the Fourteenth Amendment.” Powell v. Alabama, 287 U.S.
45, 71, 53 S. Ct. 55, 77 L. Ed. 158 (1932); U.S. CONST. amend. XIV. As a
matter of constitutional law, no person, and especially no child, may be
forced to face a criminal charge without competent counsel at their side.
A.N.J., 168 Wn.2d at 97-98; see also majority at 7-8. I concur with the
majority that ultimately, the burden is on the State to establish a statutory
scheme that sufficiently safeguards the constitutional right to counsel and
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Davison et al. v. State et al., No. 96766-1 (González, J. concurring)
that the State’s summary judgment motion was thus properly denied. I also
concur with the majority that if the class can prove what it has alleged—
systemic and structural deficiencies in our state system of delegating the
responsibility to provide a public defense to local governments—it is
entitled to relief.
I would also hold that when the State knows that one of its
subdivisions to which it has delegated its obligation to provide a
constitutionally adequate defense has systematically and willfully failed to
do so, it has a duty to act to remedy that failure.
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. See, e.g., Wilbur
v. City of Mount Vernon, 989 F. Supp. 2d 1122, 1124-26, 1133 (W.D. Wash.
2013); A.N.J., 168 Wn.2d at 99. In 1985, a legislative commission
concluded that “ʻthe state should support with partial funding the delivery of
indigent criminal defense services,’” among many other recommendations.
WASH. STATE BAR ASS’N BLUE RIBBON PANEL ON CRIMINAL DEFENSE 5
(2004). After a few failed attempts, the legislature directed counties to
“adopt standards for the delivery of public defense services,” including
compensation and caseload limits. LAWS OF 1989, ch. 409, § 4 (codified at
2
Davison et al. v. State et al., No. 96766-1 (González, J. concurring)
RCW 10.101.030). Despite the original recommendations, no state funding
for indigent public defense was provided. More study was ordered. Not
long after, the Washington State Advisory Group on Indigent Defense
recommended that 50 percent of indigent defense costs should be provided
by the State. BLUE RIBBON PANEL ON CRIMINAL DEFENSE 5. Again, that
recommendation was not enacted into law. Id.
In 2004, the Seattle Times published a series of articles documenting
chronic public defense deficiencies in Washington State. The next year, the
American Civil Liberties Union of Washington and Columbia Legal
Services sued Grant County for systematically failing to provide adequate
public defense. The case resulted in a trial court finding that the public
defense system “suffered from systemic deficiencies.” Clerk’s Papers (CP)
at 1147. That same year, the legislature passed a bill that “recognize[d] the
state’s obligation to provide adequate representation to criminal indigent
defendants and to parents in dependency and termination cases.” LAWS OF
2005, ch. 457, § 1. To that end, the legislature created the “equal justice
subaccount,” partially dedicated to indigent public defense. Id. § 8(2). Most
of its enumerated funding came from court fees. Id.
In the wake of the Grant County case, A.N.J., and other similar cases,
this court adopted caseload limitations on public defenders. Standards for
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Davison et al. v. State et al., No. 96766-1 (González, J. concurring)
Indigent Defense (available in compilations of the criminal and juvenile
court rules following CrR 3.1; CrRLJ 3.1; JuCR 9.2); see also CrR 3.1(d)(4);
CrRLJ 3.1(d)(4); JuCR 9.2(d). Nonetheless, some localities still
systemically failed to provide adequate indigent public defense. Wilbur, 989
F. Supp. 2d at 1124-26, 1133.
The facts alleged by the plaintiffs in this case are deeply troubling.
Not long after the attorney fee award in Wilbur was entered, OPD received a
call from a Grays Harbor County prosecutor who was concerned that a child
had been held in solitary confinement for more than a week. OPD
unsuccessfully attempted to work with the child’s public defender, the only
juvenile public defender in the county, to secure the child’s release. This
instance of ineffective assistance is especially egregious because of the
devastating effects of solitary confinement on children. In recognition of
this, our legislature has significantly limited its use. LAWS OF 2020, ch. 333.
As the prime sponsor of the bill, Representative Strom Peterson, said,
“Subjecting kids to solitary confinement is nothing short of torture.” Shauna
Sowersby, ‘Nothing Short of Torture’: WA to Restrict Youth Solitary
Confinement, CROSSCUT (March 12, 2020),
https://crosscut.com/2020/03/nothing-short-torture-wa-restrict-youth-
solitary-confinement#:
4
Davison et al. v. State et al., No. 96766-1 (González, J. concurring)
~:text=”Subjecting%20kids%20to%20solitary%20confinement,as%20a%20
form%20of%20punishment. [https://perma.cc/5NN9-6K2Z].
Around the same time, OPD also learned that another child, who was
held for probation violations, was serving a 120-day sentence, which was
four times the length allowed by law. CP at 627-28, 690-95; RCW
13.40.200. The public defender was apparently unaware that the sentence
was unlawful. Later, OPD received a handwritten letter from Colleen
Davison, the named plaintiff here. Davison was concerned that her 11-year-
old granddaughter had been held for two months without a capacity hearing.
By law, the capacity hearing should have been held within 14 days. JuCR
7.6(e); RCW 9A.04.050. We know that “[i]ncarceration harms children.”
State v. B.O.J., 194 Wn.2d 314, 332, 449 P.3d 1006 (2019) (González, J.,
concurring). The fact this child’s incarceration lingered on without a legally
required capacity hearing is deeply troubling.
It also troubles me deeply that children in Grays Harbor County are
forced to appear before a judge without their lawyer standing at their side.
CP at 577. Simmie Ann Baer, the founder of TeamChild, was retained to
review the adequacy of juvenile public defense in the county. She
concluded:
The unfathomable imbalance between the sub-minimal
representation provided to child clients by the juvenile public
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Davison et al. v. State et al., No. 96766-1 (González, J. concurring)
defender in Grays Harbor Juvenile Court and a minimal standard of
advocacy employing state and federal supreme court decisions based
on the vast wealth of research on adolescent brain development and
the impact it has on juvenile decision-making is inexplicable,
unjustifiable and unconstitutional. The dearth of advocacy provided to
these youth is nothing more than a “meet them and plead them”
format. From the perspective of someone who trains a wide variety of
public defenders, including in small counties, I was shocked and
saddened each time when a child client appeared in court before the
judge, the public defender . . . was ten to fifteen feet away from them,
sitting at a table with probation officers. She never stood next to her
young clients. In one case, the judge was taking a plea from one of her
clients. He asked the child if he knew what his maximum sentence
could be; he said no and the judge explained it to him. The public
defender did not move from her chair or respond.
Id. Baer also reported that the juvenile defender did not participate in the
determination of probable cause or the initial detention review, did not file
pretrial motions, did not take notes while meeting with her clients, and did
not seem to understand basic principles of child and adolescent
development. Baer’s review of the files showed that in almost every case,
the police had gotten a confession from the child without giving Miranda1
warnings. Despite this, counsel never filed suppression motions. Baer
concluded:
[T]he public defender in Grays Harbor Juvenile Court fails, on a daily
basis, to provide even minimally effective representation to her child
clients at every critical stage of the case. In sum, the court’s
conclusions in the Wilbur case also apply to Grays Harbor Juvenile
Court: “The attorney represents the client in name only . . . having no
idea what the client’s goals are, whether there are any defenses or
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
6
Davison et al. v. State et al., No. 96766-1 (González, J. concurring)
mitigating circumstances that require investigation, or whether special
considerations regarding immigration status, mental or physical
conditions, or criminal history exist. Such perfunctory ‘representation’
does not satisfy the Sixth Amendment.”
Id. at 585 (quoting Wilbur, 989 F. Supp. 2d at 1131-32).
The State does not attempt to defend juvenile public defense in Grays
Harbor County. It also concedes that it would have a duty if it did not
provide counties with the means to provide an adequate public defense.
Pet’rs’ Opening Br. at 28. Like the majority, I find triable issues of fact on
whether the State has done so.
But regardless of whether, in a clinical caseload forecast sense, the
State has provided localities with the tools they need to provide an adequate
indigent public defense, the duty to provide that public defense is an
obligation of the State. Tucker v. State, 162 Idaho 11, 21, 394 P.3d 54(2017) (citing Gideon v. Wainwright, 372 U.S. 335, 342, 83 S. Ct. 792, 9 L.
Ed. 2d 799 (1963)); State v. Kanistanaux, 68 Wn.2d 652, 654, 414 P.2d 784(1966); Hurrell-Harring v. New York, 15 N.Y.3d 8, 26, 930 N.E.2d 217, 904
N.Y.S.2d 296 (2010). The State is free to delegate the operational
responsibility to the counties. But, as the Idaho Supreme Court recognized
recently, “it cannot be said that the counties are third parties acting
independently of the State with respect to public defense. Instead, the
counties are political subdivisions of the State.” Tucker, 162 Idaho at 21.
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Davison et al. v. State et al., No. 96766-1 (González, J. concurring)
The power to delegate is not the power to absolve oneself of responsibility.
When the State knows that a county cannot or will not provide a
constitutionally adequate defense, it has some duty to act. While I do not
mean to give a comprehensive list of the actions the State might take, it
might offer education and support to the public defenders. It might work
with the body charged with hiring and retaining the public defender to
ensure need for a system that would produce effective assistance of counsel
is understood. It might offer grants. It might zealously monitor caseload
limitations and provide recommendations if needed. It might even bring suit
against localities that persistently and systemically fail to provide a public
defense.
I concur with the majority that the trial judge properly denied
summary judgment. I would go further. With these observations, I
respectfully concur.
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Davison et al. v. State et al., No. 96766-1 (González, J. concurring)
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