April 17, 2013 – In the wake of automatic federal spending cuts that took effect March 1, Wisconsin’s two federal district courts are tightening their belts to continue business as usual, but cuts to the state’s federal defender offices may cripple that agency.
A “sequestration”1 provision within the federal Budget Control Act of 2011 triggered an $85 billion, across-the-board government spending cut for the current fiscal year, which ends at the end of September. The law “sequesters” $1.2 trillion over nine years.
This year, the law cut $350 million from the judiciary, which funds the U.S. District Courts in the eastern and western districts of Wisconsin. It also funds the federal public defender system, which absorbed an estimated $43 million in cuts for 2013.
Joe Forward is the legal writer for the State Bar of Wisconsin. He can be reached by email at org jforward wisbar wisbar jforward org or by phone at (608) 250-6161.
“We are steaming towards a constitutional crisis,” said Daniel Stiller, executive director of the Federal Defender Services of Wisconsin, which has offices in Milwaukee, Green Bay, and Madison. “We are uniquely injured, and pretty close to being crippled.”
The agency – whose lawyers represent criminal defendants facing federal charges – faced a 5 percent funding cut to start the fiscal year. The federal judiciary cut another 5 percent in February, and sequestration took another 5.5 percent on March 1.
On March 29, the agency was forced to lay off 22 percent of its workforce (7 of its 25 employees). Stiller said this was a brutal process for talented and dedicated workers.
The remaining employees, including 12 attorneys, are subject to pay cuts in the form of 22 unpaid furlough days through the rest of the fiscal year, Stiller said.
“Diminished funding increases the risks that individuals with a right of counsel won’t receive protections under the Fourth, Fifth, and Sixth amendments to the U.S. Constitution,” Stiller said. “This is not how our justice system is supposed to work.”
Stiller says the agency, which handled close to 900 cases in 2012, can keep pace for a little while, but cannot sustain itself at current funding levels. “We are doggy paddling in a competitive swim race for justice. At some point, we will drown,” he said.
Meanwhile, sequestration cuts the budget for federal prosecutors by a reported $100 million, a 9 percent cut for the remaining 2013 fiscal year.
Lawyers for the U.S. Attorney’s offices in Wisconsin, which has divisions in Milwaukee, Madison, and Green Bay, face up to 14 furlough days through September 30, but furlough decisions are still pending, according to documents obtained by the State Bar.
Impact on the Courts
Sequestration had the federal judiciary immediately predicting a “gloom and doom” situation for the country’s federal courts, two of which are situated in Wisconsin.
“The judiciary cannot continue to operate at such drastically reduced funding levels without seriously compromising the constitutional mission of the federal courts,” the Hon. Julia Gibbons told federal lawmakers in mid-March. Gibbons is chair of the U.S. Judicial Conference Budget Committee, and a Sixth Circuit Court of Appeals judge.
To avoid layoffs and furloughs, the U.S. District Court for the Eastern District of Wisconsin is forced to cut salary and wages by 14 percent, according to Clerk of Court Jon Sanfillippo, with other costs of operation slashed by 20 percent.
“We think we can get through the rest of the fiscal year and not necessarily have to furlough, which means we will keep our standard hours, our standard work week, and provide our regular services to the public and to lawyers,” Sanfillippo said.
At the U.S. District Court for the Western District of Wisconsin, located in Madison, Clerk of Court Peter Oppeneer reports a similar situation.
“I don’t think sequester will impact the service we provide,” Oppeneer said. “We are not going to be furloughing employees or closing the court.”
Prudent fiscal planning puts these federal district courts in a better position than some, which are reporting mandatory furloughs and other measures. For instance, a federal district court in Colorado has ended criminal hearings and trials every Friday.
Sanfillippo says the eastern district, which has courts in Milwaukee and Green Bay, is able to reprogram existing funds to minimize impacts on staff, thereby reducing the need to alter hours of operation or close court on certain days.
“Our primary concern is to keep the court open and operating under its normal hours,” he said. “That’s not to say these cuts don’t hurt our everyday operations.”
Sanfillippo says the court stopped ordering supplies, cut contract court reporters that allow flexibility in scheduling, and has delayed hiring positions left open by retirements. That means current staff must get trained on other tasks and double-up on workloads.
“That may work for a while, but one person can’t do the job of two,” said Sanfillippo, noting a potential 5 to 6 percent cut looming for 2014. “Somewhere along the line, services are going to suffer. There’s just no getting around it.”
Oppeneer has a similar view: “Whether we can continue full service in 2014, I just don’t know,” he said. “If the sequester continues, I’m sure courts will wind up having to eliminate people that are important to the mission of the court.”
The biggest impact on the courts will be the rescheduling necessary to accommodate furloughed federal defenders or U.S. attorneys, Sanfillippo and Oppeneer say.
“The greater impact on the court will be from cuts to the federal defenders,” Oppeneer said. “Our judges will certainly accommodate the schedules of furloughed attorneys.”
“It could mean our judges don’t schedule certain cases on certain days,” Sanfilippo said. “We are coordinating with those agencies that may be forced to furlough.”
1 “Sequestration” is defined as “the process by which property is removed from the possessor pending the outcome of a dispute in which two or more parties contend for it.” Black’s Law Dictionary (8th Ed.).