            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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Davison et al. v. State of Washington et al., 96766-1



                                         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



                                            -3-
Davison et al. v. State of Washington et al., 96766-1



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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Davison et al. v. State of Washington et al., 96766-1



       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.



                                            -5-
Davison et al. v. State of Washington et al., 96766-1



       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.


                                               -6-
Davison et al. v. State of Washington et al., 96766-1




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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Davison et al. v. State of Washington et al., 96766-1



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.

                                             -8-
Davison et al. v. State of Washington et al., 96766-1



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.




                                            -9-
Davison et al. v. State of Washington et al., 96766-1



       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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Davison et al. v. State of Washington et al., 96766-1



       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.



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Davison et al. v. State of Washington et al., 96766-1



       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,



                                            -12-
Davison et al. v. State of Washington et al., 96766-1



       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-
Davison et al. v. State of Washington et al., 96766-1



       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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Davison et al. v. State of Washington et al., 96766-1



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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Davison et al. v. State of Washington et al., 96766-1



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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Davison et al. v. State of Washington et al., 96766-1



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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Davison et al. v. State of Washington et al., 96766-1



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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Davison et al. v. State of Washington et al., 96766-1



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).

                                           -19-
Davison et al. v. State of Washington et al., 96766-1



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

                                       1
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

                                      5
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.

                                        7
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.




                                        8
Davison et al. v. State et al., No. 96766-1 (González, J. concurring)




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