Supreme court hears arguments for, against civil Gideon
By the Government
Relations Team, State Bar of Wisconsin
Oct. 5, 2011
– The Wisconsin Supreme Court held a public hearing on a rules
petition that would create a right to publicly funded counsel for
indigent litigants in certain civil cases.
The court took no immediate action following the public hearing
yesterday (Oct. 4), but may take the petition up again on Oct. 17 at a
previously scheduled open administrative conference.
The concept advanced by the petition, commonly known as a
civil Gideon, would provide that in certain civil actions, an
indigent litigant (defined as below 200% of the federal poverty limit)
would have an attorney appointed at public expense when needed to
protect the litigant’s rights to “basic human needs,
including sustenance, shelter, clothing, heat, medical care, safety and
child custody and placement.”
The petition
was filed in September 2010 by attorney John F. Ebbott, the executive director of Legal Action
of Wisconsin (LAW). Ebbott presented the
petition to the court at the public hearing, supported by many other
professionals in the legal aid community.
Prior to the hearing, LAW submitted a list of
18 other proposed speakers for the hearing, many of whom made
presentations to the court, including Ebbott and the
following:
-
Hon. David Keck, Winnebago County court commissioner;
-
Hon. Mary E. Triggiano, Milwaukee County Circuit Court;
-
Hon. Michael McAlpine, Monroe County Circuit (retired);
-
Hon. Thomas Donegan, Milwaukee County Circuit Court;
-
Hon. Glenn Yamahiro, Milwaukee County Circuit Court;
-
Hon. James Gramling, Milwaukee Municipal Court
(retired);
-
Justice Earl Johnson Jr., scholar in residence, Western Center on Law
and Poverty;
-
Jim Brennan, president, State Bar of Wisconsin;
-
Michael Greco, past president, American Bar Association;
-
John Pollock, Public Justice Center;
-
John S. Skilton, past president, State Bar of
Wisconsin;
-
Christopher Hanewicz, president, Wisconsin Equal Justice
Fund;
-
Winston Ostrow, Godfrey & Kahn, Green Bay;
-
E. Michael McCann, Milwaukee County district attorney (retired);
-
Marsha Mansfield, Wisconsin Access to Justice Commission; and
-
Thomas Cannon, executive director, Milwaukee Legal Aid Society.
Several other individuals and organizations also testified and/or filed
written comments
regarding the petition. Ebbott also filed an
executive
summary and a memorandum
in support of the petition. The executive summary suggests that funding
for such a program could come from counties (as in Dean
appointments in the criminal justice system), with possible
reimbursement by the state.
State Bar supports concept in principle
At its meeting on Sept. 23-24, 2011, the State Bar of Wisconsin’s
Board of Governors (Board) voted to support the civil Gideon
concept in principle without supporting or opposing any specific
petition. State Bar President Jim Brennan presented the Board’s
position to the court at the Oct. 4 public hearing.
According to the Board’s position, “The State Bar of
Wisconsin affirms the historic duty accorded to the Wisconsin Supreme
Court by the Wisconsin Constitution to exercise ‘superintending
and administrative authority over all courts,’ including its
inherent supervisory power over the practice of law. The State Bar
supports policies which encourage or enhance the quality and
availability of legal services to the public, including persons unable
to afford legal representation in civil cases.”
In his remarks to the court, Brennan emphasized the State Bar’s
history of supporting the right to counsel, as well as judiciary’s
historic role in appointing counsel for indigent litigants. According to
Brennan, the Wisconsin Supreme Court should reinvigorate this core
judicial function, as part of its constitutional, superintending
authority over the judiciary, to ensure that litigants in our courts are
adequately represented in civil cases, on a case-by-case basis.
State Bar support for right to counsel
Over the years, the State Bar Board has adopted several other public
policy positions related to the subject matter of the petition. In
September 1994, the Board stated that the State Bar “supports the
exercise of inherent judicial power to appoint attorneys to assist the
court in the fair administration of justice by service as counsel for
parties, guardians ad litem and special prosecutors.”
The Board has also long-supported “state general purpose revenue
funding to provide civil legal assistance by lawyers to low-income
citizens … [and] recognizes that legal needs of low-income
individuals go largely unmet and that access to legal services removes
obstacles for low-income individuals in obtaining and maintaining
employment, health care and child care.”
In July 2008, the State Bar petitioned
the Supreme Court to create an Access to
Justice Commission, which the court established in June 2009
“to develop and encourage means of expanding access to the civil
justice system for unrepresented low income Wisconsin residents.” Pursuant to the 2009 order
creating the commission, the State Bar agreed to fund commission staff
for at least its first three years of existence.
The Board also supported a 2010 petition seeking a judicial statement
that the statutory hourly rate paid to private attorneys appointed by
the State Public Defender (SPD) is
“unreasonable” and sought an increase in the Supreme Court
rate for court-appointed attorneys under SCR 81.02. The court denied
that petition in July 2011. However, it did so while warning 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.”
U.S. Supreme Court weighs in
On June 20, 2011, the U.S. Supreme Court
decided in Turner v.
Rogers et al., that the Constitution does not automatically
require the provision of counsel at civil contempt proceedings to an
indigent individual who is subject to a child support order, even if
that individual faces incarceration of up to one year.
Under Turner, courts do not necessarily need to appoint
counsel in similar civil cases that implicate due process rights, but
states must ensure that unrepresented litigants are protected with
procedural safeguards, such as “adequate notice of the importance
of ability to pay, fair opportunity to present, and to dispute, relevant
information, and court findings.”
While Turner does not require counsel in civil cases in which
incarceration is a possible result (unless the proceedings are not
“fundamentally fair”), it also does not appear to prevent
states from deciding to fund civil legal services or even to require the
appointment of counsel to indigent persons in certain civil cases.
A video archive of the hearing is available on the Wisconsin
Eye website. Continue to monitor WisBar.org and visit the State
Bar’s Government
Relations page for updated information on these issues.
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