: Supreme court denies compensation petition but warns of 'constitutional crisis':

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  • Supreme court denies compensation petition but warns of 'constitutional crisis'

    Adam Korbitz

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    July 15, 2011 – The Wisconsin Supreme Court has denied a petition seeking a judicial statement that the statutory hourly rate paid to private attorneys appointed by the State Public Defender (SPD) is “unreasonable.”

    However, the court warned that without legislative action to increase the SPD hourly rate, Wisconsin faces the prospect of a constitutional crisis as the criminal justice system reaches the “breaking point.”

    The petition was filed in March 2010 by a group of Wisconsin attorneys that included eight past presidents of the State Bar of Wisconsin.

    Compensation petition also sought increase in hourly rate under SCR 81.02

    In a written decision filed July 6, 2011, the court unanimously denied petition 10-03, which also sought an increase to $80 per hour in the Supreme Court rate for court-appointed attorneys under SCR 81.02.

    The current Supreme Court rate for court-appointed attorneys such as GALs is set by SCR 81.02 at $70 per hour, but this rate does not apply to SPD private bar appointments, which are paid at a statutory rate of $40 per hour.

    While the petition would not have directly established SPD private bar rates, it would have provided that payment of an hourly rate less than the rate set forth in SCR 81.02(1) for legal services rendered pursuant to appointment by the SPD under Wis. Stat. section 977.08 is “unreasonable.”

    Court warns of “constitutional crisis” if no action taken

    In deciding to deny the petition, the court acknowledged that the current $40 SPD rate is the same rate Wisconsin paid private bar attorneys 15 years ago and only $5 more per hour than the original rate established in 1978 – over thirty years ago.  “We are advised that this is the lowest such hourly rate in the nation,” the justices stated. “By comparison, during the same time span the rate of compensation for attorneys serving in the federal system has doubled from $65 (1995) to $125 (2010).”

    The court then addressed a threshold question: whether the Wisconsin Supreme Court has the authority to effectively declare a legislative mandate (the statutory $40 per hour SPD rate under sec. 977.08) "unreasonable," as proposed by the petitioners. Answering this question, the court stated, “We agree that this is an area of shared authority for the court and the legislature, but we decline at this time to use our administrative regulatory process to effectively circumvent a legislative enactment.”

    The court continued:

    However, we express sincere concern because we recognize that indigent criminal defense programs in Wisconsin are inadequately funded. . . . the petitioners have provided extensive anecdotal evidence that supports their assertion that funding shortfalls may compromise the right to effective assistance of counsel.

    * * *

    [O]ur criminal justice system is reaching a breaking point.  The resources available for the defense of poor people accused of crime has fallen alarmingly, potentially compromising our constitutional responsibility to ensure that every defendant stands equal before the law and is afforded the right to a fair trial guaranteed by our constitution.  If this funding crisis is not addressed we risk a constitutional crisis that could compromise the integrity of our justice system.

    In denying the petition, the court also noted the “challenging budgetary environment” legislators currently face and acknowledged that several counties also opposed the petition “because they simply cannot afford” the proposed increased rate for court-appointed attorneys under SCR 81.02.

    Previous legislative efforts to increase the SPD statutory rate have been unsuccessful. When the 2009-10 Legislature adjourned its regular session in April 2010, it left unfinished a bill that would have increased the hourly rate for private bar State Public Defender appointments from $40 to $70. The current Legislature has not yet considered similar legislation.

    State Bar supported petition

    On May 4, 2010, the State Bar’s Board of Governors voted to support petition 10-03. The BOG has an existing public policy position supporting SPD private bar rates “equal to those set by the Wisconsin Supreme Court for court-appointed attorneys.”

    State Bar President Jim Brennan (then President-elect) and Milwaukee Attorney Ray Dall’Osto represented the State Bar in supporting the petition when the court held a public hearing on the petition on Nov. 9, 2010.

    The petitioners were represented at the Nov. 9 public hearing by attorneys John S. Skilton, Dean A. Strang, David E. Jones and Robert H. Friebert.

    The attorneys who filed the petition include the following past presidents of the State Bar (in addition to Skilton): Patricia K. Ballman, Thomas J. Basting Sr., Michelle A. Behnke, Gregory B. Conway, Franklyn M. Gimbel, Gerald M. O’Brien, and G. Lane Ware. Other attorneys who signed the petition (in addition to Friebert and Strang) include Richard T. Becker, former Wisconsin Supreme Court Justice Janine P. Geske, former Milwaukee County District Attorney E. Michael McCann, Jose A. Olivieri, and Timothy W. Burns.

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

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

    Related articles:

    Supreme Court acts on compensation, permanent revocation petitions - November 12, 2010
    Supreme court sets 2010-11 schedule of rule-making proceedings - August 9, 2010
    Petition filed to increase Supreme Court rate for court-appointed attorneys - March 22, 2010
    Bill to increase SPD private bar rate dies as Legislature adjourns for the year - May 11, 2010


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    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 org pubaffairs wisbar 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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