State Bar of Wisconsin

Assembly gives final passage to bill to expand public defender eligibility limits

By Adam Korbitz, Government Relations Coordinator, State Bar of Wisconsin

March 5, 2010 – The state Assembly has given final passage to legislation expanding financial eligibility for the appointment of a public defender, sending the bill to Gov. Jim Doyle for his consideration.

Members of the Assembly approved the bill on a voice vote on Thursday, March 4. The state Senate passed the bill on a bipartisan 21-12 vote on January 28.

Representative Gary Sherman and Senator Spencer Coggs introduced Senate Bill 263 in August 2009. If the governor signs the bill into law, it will expand state financial eligibility for public defender representation from the antiquated 1987 AFDC limits to current W-2 limits, which generally are 115 percent of the federal poverty level.

According to recent media reports, one of the legislative authors, Representative Sherman, has said he believes the governor is likely to sign the bill.

The State Bar of Wisconsin’s Board of Governors has a long-standing position in favor of using federal poverty guidelines as minimum financial criteria for determining indigence and eligibility for constitutionally mandated appointment of counsel, and consistent with that position State Bar lobbyists worked with the State Public Defender (SPD) to enlist legislative support for such a change.

“It is time for the State of Wisconsin to meet its obligation to make justice accessible to the poor by updating SPD eligibility limits as proposed in AB 395 and SB 263,” said a State Bar memo sent to legislators prior to the vote. “The State Bar of Wisconsin urges you to approve this legislation.”

State budget contained similar provision, which was vetoed

Because financial eligibility standards for public defender representation are set by statute and have not been updated since 1987, many of Wisconsin’s poorest citizens are left without access to public defender representation.

State lawmakers have previously introduced bills in the 2003, 2005 and 2007 legislative sessions to update and simplify the eligibility criteria. Despite broad, bipartisan support, none of those bills passed before those sessions ended.

During its deliberations on the state budget last year, the Joint Finance Committee inserted language into the 2009-11 biennial state budget to expand SPD financial eligibility for public defender representation, similar to the language now contained in SB 263.

However, when Gov. Doyle signed the budget into law on June 29, 2009, he used his line-item veto power to eliminate the Joint Finance eligibility language. Had they not been vetoed by Gov. Doyle, the increased eligibility levels would have taken effect at the end of the current biennium, June 30, 2011.

As part of that now-vetoed plan, the Legislature had approved hiring 32 new SPD staff attorneys and 17 support positions to accommodate the anticipated increase in the State Public Defender’s caseload. Because the changes would not have been effective until the last day of the current biennium, they would have had no fiscal effect on the 2009-11 state biennial budget. However, when fully implemented, the estimated cost associated with last year’s Joint Finance proposal would have been $4.6 million annually.

Senate Bill 263 is estimated to have similar costs. The legislation would increase the SPD’s caseload by approximately 10 percent, or about 13,000 cases per year. Under the bill, SPD staff would be assigned 75 percent of the caseload (an increase from the current 55 percent handled by staff attorneys) and the private bar would be assigned the remaining 25 percent. The State Bar’s Board of Governors supports the allocation of cases included in the bill.

Continue to monitor WisBar.org and visit the State Bar’s Government Relations page for updated legislative information.

Related articles:

Senate passes bill to expand public defender eligibility limits - January 29, 2010

Joint Finance approves bills to expand public defender eligibility limits - January 14, 2010

State Bar urges Joint Finance to support expanded public defender eligibility limits - December 16, 2009

State Bar supports expanded public defender eligibility limits at joint hearing - October 7, 2009

Lawmakers continue push for increased public defender eligibility limits – September 2, 2009
Governor signs state budget into law – June 29, 2009
Joint Finance expands SPD eligibility, boosts indigent civil legal services – May 27, 2009

Rotunda Report is the State Bar of Wisconsin’s Government Relations e-newsletter that highlights legislative, judicial, and administrative developments that impact the legal profession and the justice system. It is published twice a month and is distributed free to attorneys, public officials and others who help shape public policy in Wisconsin. We invite your suggestions to make the Rotunda Report more informative and useful and we encourage you to visit our Web site for the most current information about justice-related issues.

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