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Future of WA public defense funding unclear after judge tosses lawsuit

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Washington’s county-level governments are still seeking a way to get the state to pay more to support public defense. A judge in Thurston County recently dismissed a lawsuit that sought to increase the state’s share of the burden.

Judge Allyson Zipp agreed with the lawsuit’s premise that public defense in Washington faces serious challenges. But Zipp rejected the basis on which the Washington State Association of Counties brought the lawsuit last September.

The counties argued the state is constitutionally obligated to ensure adequate public defense resources. Zipp’s interpretation of the law held that only defendants can pursue such a case.

“Counties are not within the zone of interest, under the constitutional guarantees in question,” Zipp said in her March 22 oral ruling. “The counties cannot assert claims premised on right to counsel as those rights are held by individual indigent criminal defendants, not counties.”

Zipp’s ruling did not resolve what Eric Johnson called “a crisis around the State of Washington’s constitutional obligation to provide adequate public defense services.”

Johnson, executive director of the Washington State Association of Counties, told Spokane Public Radio the group will review Zipp’s ruling and consider its options. An appeal is possible, but the association hasn’t decided its next step.

When the association filed the lawsuit last fall, it said that, on average, county governments paid for 97 percent of public defense costs. The remaining three percent came from the state.

Last month, Spokane County CEO Scott Simmons told the Washington State Bar the county spent $11.5 million on public defense. The state contributed just half a million dollars. The state’s share, Simmons said, had remained virtually flat since 2015.

Counties need help now, Johnson said, but Zipp’s ruling and inaction from state lawmakers are putting relief further out of reach.

“We’re struggling to hire indigent defense attorneys, and we’re struggling to find the resources to be able to do that,” Johnson said. “You’re starting to see the consequences of that.”

The consequences, Johnson said, include releasing people from jail because they can’t get a public defender in a timely manner.

At the same time, county public defense offices are girding for the effects of a Washington Bar Association proposal that would reduce the number of cases public defenders handle in a given year. The goal is to give defenders more time per case. The flipside will likely mean counties will have to hire more public defenders and support staff – a challenge when local governments already struggle to keep public defense offices staffed.

In a recent conversation with Spokane Public Radio, Spokane County Commissioner Mary Kuney said local leaders understood the logic of giving public defenders more time to focus on their cases and clients. But unless state funding increases, it was unclear how counties would shoulder the financial burden.

“It’s not just [hiring] the public defenders, but then they have additional support staff,” Kuney said. “And that doesn’t take into account increased population and increased people using the system. So we’re very concerned about this.”

Johnson said he hopes the Washington legislature decides to increase the state’s share in the 2025 legislative session. But that session is still nine months away from starting, and attempts this year to increase state funding for indigent defense failed. Prospects for next year are unclear.

“This is a crisis,” Johnson said. “Finally, folks are talking about it more. Hopefully, the legislature itself will begin to the accept the responsibility around…resource issues.”

Concerns about inadequate public defense also bedevil Washington’s neighbors. A recent draft report said Oregon would have to hire 500 more public defenders to address its longstanding problems. And Idaho’s legislature agreed last year to reverse the funding burden from counties to the state, beginning next year – a move Johnson, Kuney, and other county leaders hope Washington will follow.