Vol. 81, No. 11, November
Supreme Court Orders
In order 02-03, the Wisconsin
Supreme Court will discuss legislative redistricting at its open
administrative conferences on Jan. 22, 2008, and Feb. 20, 2009, and will
accept written submissions from any person interested in the matter by
Dec. 31. The matter is not presently scheduled for public hearing. In
order 08-17, the court will hold a public hearing on Dec. 17 regarding
the State Bar petition to create a Wisconsin Access to Justice
State Legislative Redistricting
In the matter of the adoption of procedures for original action cases
involving state legislative redistricting
On Nov. 25, 2003, this court appointed a committee to review this
court’s opinion in Case No. 02-0057-OA, Jensen v. Wisconsin
Elections Bd., 2002 WI 13, 249 Wis. 2d 706, 639
N.W.2d 537, and to review the history of state legislative
redistricting in Wisconsin, and redistricting rules and procedures in
other jurisdictions, including federal and state courts. The court
authorized the committee, upon completion of its review, to propose
procedural rules in the event an original action involving redistricting
litigation was filed and accepted.
The committee’s appointment resulted from the original
action petition filed in this court in the Jensen case by
Assembly Speaker Scott R. Jensen and Senate Minority Leader Mary E.
Panzer, representing Assembly and Senate Republicans, seeking this
court’s involvement in the redistricting process due to a
legislative impasse. The original action petition filed in Jensen
sought a declaration that the existing legislative districts were
constitutionally invalid due to population shifts documented by the 2000
census. The petition requested this court to enjoin the Wisconsin
Elections Board from conducting the 2002 elections using the existing
Although the court found that the petition filed in the
Jensen case warranted this court’s original jurisdiction,
it determined this court lacked procedures for redistricting litigation
in the event of a legislative impasse resulting in a petition for an
original action. The court’s decision in the Jensen case
said this court’s existing original jurisdiction procedures would
have to be substantially modified to accommodate the case’s
requirements. It explained that a “procedure would have to be
devised and implemented, encompassing, at a minimum, deadlines for the
development and submission of proposed plans, some form of fact-finding
(if not a full-scale trial), legal briefing, public hearing, and
The Jensen decision stated, in part: “[T]o assure
the availability of a forum in this court for future redistricting
disputes, we will initiate rulemaking proceedings regarding procedures
for original jurisdiction in redistricting cases.” The timing of
the request in Jensen for this court to take original
jurisdiction did not permit the exercise of jurisdiction in a way to do
substantial justice, and the dispute was ultimately resolved in federal
court, where a case was already pending.
The Jensen decision indicated new procedures could include
“provisions governing factfinding (by a commission or panel of
special masters or otherwise); opportunity for public hearing and
comment on proposed redistricting plans; established timetables for the
factfinder, the public and the court to act; and if possible, measures
by which to avoid the sort of federal-state court ‘forum
shopping’ conflict presented [in this case].” Consequently,
this court voted to convene a committee to study and draft procedural
rules that govern state legislative redistricting litigation in
The committee filed its initial report with the court in
September 2007, which was distributed to interested parties and is
available on the court’s Web site. See
http://wicourts.gov/supreme/petitions_audio.htm. The committee has now
filed a supplemental memorandum, which supplements information in the
committee’s initial proposal and was drafted in response to public
comment and questions asked by various justices during an open
administrative conference held on April 8, 2008. The committee’s
supplemental memorandum is also available on the court’s Web site.
The supplemental memorandum addresses details of the committee’s
original proposal, which outlined procedures that could be implemented
1) the Legislature is at an impasse in attempting to redraw
legislative and congressional district boundaries; and
2) a party files a lawsuit asking the court to take original
3) the court agrees to grant the case; and
4) the court approves the procedures.
The court has invited public comment on the supplemental
memorandum and will discuss the matter further, including any comments
it receives, at future open administrative conferences and will decide
any future steps that may be necessary.
IT IS ORDERED that on Thursday, Jan. 22, 2009, at 10 a.m., and on
Friday, Feb. 20, 2009, at 9:30 a.m., at its open administrative
conferences in the Supreme Court Room in the State Capitol, Madison,
Wis., the court shall discuss the committee’s report, the
committee’s supplemental memo, and comments received.
IT IS FURTHER ORDERED that any interested persons may file with
the court a written submission for the court’s review at these
conferences, preferably no later than Dec. 31, 2008. The court retains
the entire file on this matter and interested persons are encouraged not
to file duplicative submissions. As this matter is not presently
scheduled for public hearing, general public testimony will not be
entertained at the open conferences at this time. The court may, in its
discretion, direct questions to individuals present at the conferences
to aid the court’s consideration of these matters.
IT IS FURTHER ORDERED that notice of the open administrative
conference be given by publication of a copy of this order in the
official state newspaper once each week for three consecutive weeks, and
in an official publication of the State Bar of Wisconsin not more than
60 days nor less than 30 days before the date of each of the two
conferences, specifically in the State Bar’s November 2008,
December 2008, and February 2009 publications.
Dated at Madison, Wis., this 1st day of October, 2008.
By the court:
David R. Schanker, Clerk of Supreme Court
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Access to Justice Commision
In the matter of the Creation of an Access to Justice Commission
On July 1, 2008, the Board of Governors of the State Bar of Wisconsin
filed a petition requesting the court create a Wisconsin Access to
Justice Commission. The petition sets forth specific recommendations on
the commission’s mission, membership, and funding. The Board of
Governors adopted the Access to Justice Study Committee report,
“Bridging the Justice Gap: Wisconsin’s Unmet Legal
Needs,” on May 8, 2007. The report is available at
In this report the committee recommended the establishment of an Access
to Justice Commission.
IT IS ORDERED that a public hearing on the petition shall be held
in the Supreme Court Room in the State Capitol, Madison, Wis., on Dec.
17, 2008, at 9:30 a.m.
IT IS FURTHER ORDERED that the court’s conference in the
matter shall be held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by a
single publication of a copy of this order and of the petition in the
official state newspaper and in an official publication of the State Bar
of Wisconsin not more than 60 days nor less than 30 days before the date
of the hearing.
Dated at Madison, Wis., this 1st day of October, 2008.
By the court:
David R. Schanker, Clerk of Supreme Court
The State Bar of Wisconsin, acting pursuant to a resolution of its
Board of Governors, petitions the Court for an order creating a new
Wisconsin Access to Justice Commission. The reasons for this petition
and a description of the proposed commission are described more fully
I. Confronting the Wisconsin Justice Gap
The State Bar of Wisconsin believes that equal justice for all is
fundamental to our system of government in Wisconsin. Delivering on the
promise of equal justice is a core element of the State Bar of
Wisconsin’s strategic plan which in turn reflects the reasons for
which the State Bar was organized under SCR 10.02(2). The promise of
equal justice under law is not realized for individuals and families who
have no meaningful access to their justice system. In an increasingly
rule-bound society, lack of access to legal advice or advocacy for basic
needs can have catastrophic consequences that are far more costly than
the provision of legal aid at the outset. The reality and the perception
of a denial of equal justice has an adverse impact on these individuals,
families, and society as a whole, and works to erode public trust and
confidence in our system of justice.
A. The need is substantial
The number of low income Wisconsin residents facing serious civil
legal problems without necessary legal assistance is large and growing.
Those in need include the chronically unemployed, the homeless, the
disabled and elderly people barely getting by on Social Security in
addition to families and individuals who, every day, must sacrifice in
order to obtain basic necessities. The legal needs encompass every
aspect of a person’s life, including housing, family,
children’s schooling, wills/estates, employment, consumer and
The State Bar’s Access to Justice Study Committee report,
“Bridging the Gap: Wisconsin’s Unmet Legal Needs,”
extensively documented the unmet legal needs of low-income residents in
this state through the Wisconsin Civil Legal Needs Study that the
The Report in its entirety is incorporated in this Petition. Some
key findings from the legal needs survey were:
- Every year in Wisconsin more than 500,000 people confront an
average of two serious civil legal problems.
- The need was highest among the poorest families; almost half (48%)
of those in the lowest income group encounter an average of two serious
civil legal problems every year.
- 64% of poor households with children and 63% of households with
someone who is disabled encounter a legal need.
- 32% of rural households encounter a civil legal need.
- Nearly 66% of those who proceed without legal representation in
court or at an administrative hearing face opposing parties who are
B. The gap between needs and available services is
Recent studies across the country consistently have shown that
legal service programs meet only 20-50% of the need. In Wisconsin, about
80% of households with a legal need go without legal assistance. The
Access to Justice study found that among all households who reported a
legal problem, only 12% said they had received help from a lawyer for
all the problems they identified and only 27% received help from a
lawyer for at least one of the issues. Legal service providers in
Wisconsin report that for every eligible client they serve, they must
turn away another client, simply for lack of funds. These findings are
corroborated by the tide of unrepresented litigants that threatens to
swamp our court system.
These figures may understate the actual size of the
“justice gap” in Wisconsin. The Access to Justice survey
results show that most of those who would be eligible did not know how
to obtain legal assistance. Only 37% of the survey respondents were
aware of the existence of free legal services for people who cannot
afford a lawyer.
Wisconsin has made laudable efforts to meet these needs, but
despite efforts such as the following, a vast gap persists:
- Wisconsin lawyers and clients pay interest on trust accounts to the
Wisconsin Trust Account Fund, which distributes the funds to legal
- Providers also receive contributions from the Equal Justice Fund,
to which lawyers and others make charitable contributions to address the
need for lawyers in civil matters.
- Every Wisconsin lawyer contributes $50.00 per year to the Public
Interest Legal Services Fund by way of mandatory assessment.
- Wisconsin lawyers contribute an estimated 40,000 hours or more of
pro bono legal services.
- The Department of Health and Family Services operates an exemplary
program of “benefit specialists,” trained and supervised by
lawyers, who help elderly clients and clients with disabilities navigate
the complex rules and regulations of government benefit programs and
help them secure benefits to which they are entitled by law.
- The Legislature recently enacted a measure sponsored by the
Governor to provide approximately $1 million in state funds to be
distributed to providers who serve the legal needs of low income
- This Court and others in the state have launched self-help centers,
expanded the range of assistance court clerks can render, simplified
court forms and made them available on-line.
- The Court amended the Rules of Professional Conduct, raising and
sharpening the Court’s pro bono expectations of lawyers (SCR
20:6.1), and expanding opportunities for lawyers to serving low income
families in legal clinics without harming the interests of other clients
II. Sustained and coordinated attention is needed to close the
Policymakers and the public are less likely to believe that
substantial, long term investments in civil legal aid to the poor are
both necessary and wise without coordinated outreach and a statewide
plan for action. A commission should be empowered to make significant
headway on improving access to justice. It should be an advocate for the
additional resources that will be needed and it should be a champion for
a system of civil legal services delivery to the poor that is efficient,
just and accessible to all.
A. Judicial leadership is vital
The judiciary is the most public face of the justice system and
embodies the trust that the public places in the rule of law. Resolution
23 adopted by the Conference of Chief Justices at its Midyear Meeting on
January 25, 2001, recognizes that judicial leadership on this important
issue is vital to making progress on closing the gap between the promise
and the reality of equal justice for all. The resolution concludes that
judicial leadership is essential to ensuring equal access to the justice
system and “encourages individual members in their respective
states to establish partnerships with state and local bar organizations,
legal service providers, and others to:
1. Remove impediments to access to the justice system, including
physical, economic, psychological and language barriers; and
2. Develop viable and effective plans, to establish or increase
public funding and support for civil legal services for individuals and
families who have no meaningful access to the justice system; and
3. Expand the types of assistance available to self- represented
litigants, including exploring the role of non-attorneys.”1
The State Bar of Wisconsin fully supports the statement of
judicial leadership contained in Conference of Chief Justices Resolution
23. Only a collaborative effort between the bar, the Court and other
stakeholders in the justice system will ensure that progress is made in
increasing access to justice. A Wisconsin Access to Justice Commission
dedicated to the mission of developing comprehensive plans for
addressing the “justice gap” can be an important step
towards achieving each of the three goals set forth at the end of the
B. Access to justice commissions are a proven tool for
improving the civil justice system
The highest courts of 20 states plus the District of Columbia
have ordered the creation of statewide equal justice planning bodies
similar to the commission proposed by this petition. High courts in
Alabama, Alaska, Arkansas, California, Colorado, District of Columbia,
Georgia, Idaho, Massachusetts, Minnesota, Montana, Mississippi, Nevada,
New Hampshire, New Mexico, New York, North Carolina, South Carolina,
Texas, Utah and Washington have adopted such a structure.
The access to justice commission model has proven its value
nationally in expanding, coordinating and promoting effective and
economical civil legal services delivery for vulnerable people.
Commissions like these have pushed for and accomplished expanded state
funding of civil legal service programs. They have encouraged and
accomplished greater contributions of time and money from lawyers,
civic-minded corporations, foundations and other patrons of good
government. They have coordinated efforts among the bench and the bar to
raise awareness of the need for greater support for legal services to
low income families and of innovative programs to meet those needs.
Some fear that such a body will become a tool of those who might
seek to limit rather than expand the scope of services available to low
income families. They cite the experience over the years with
limitations imposed on legal service providers who receive funding from
the federal Legal Services Corporation. However, the State Bar is not
aware of any evidence that any one of the twenty state commissions upon
whom this proposed commission is modeled have ever sought to limit
rather than expand the services available to those who need them.
C. Wisconsin can and should meet a higher standard
The State Bar of Wisconsin supports the goal stated in the
preface to the “Principles of a State System for the Delivery of
Civil Legal Aid” adopted by the American Bar Association’s
House of Delegates in August 2006:
“A state’s system for the delivery of civil legal aid
provides a full range of high quality, coordinated and uniformly
available civil law-related services to the state’s low-income and
other vulnerable populations who cannot afford counsel, in sufficient
quantity to meet their civil legal needs.”
These expectations are reflected in the updated “Standards
for the Delivery of Civil Legal Aid” that were also adopted by the
ABA House of Delegates in August 2006. We set forth the ABA 10
Principles here, because we believe that they should guide the
Court’s consideration of this petition and the work of the Access
to Justice Commission:
A state’s system for the delivery of civil legal aid
achieves the goal if it:
1. Provides services to the low-income and vulnerable populations
in the state.
2. Provides a full range of services in all forums.
3. Provides services of high quality in an effective and cost
4. Provides services in sufficient quantity to meet the need
by maximizing and making the most effective use of financial, volunteer,
and in-kind resources dedicated to those services from all likely
5. Fully engages all entities and individuals involved in the
provision of those services.
6. Makes services fully accessible and uniformly available
throughout the state.
7. Treats clients and others who receive services with dignity
and respect, actively engages clients and interacts effectively with
them and engages them in planning and obtaining meaningful information
about their legal needs to improve the system as a whole.
8. Engages and involves the judiciary and court personnel in
reforming their rules, procedures and services to expand and facilitate
access to the courts and to reduce, whenever possible, the cost of
providing civil legal services.
9. Is supported by an organized bar and judiciary that is
providing leadership and participating with legal aid providers, law
schools, the executive and legislative branches of government, the
private sector and other appropriate stakeholders in ongoing and
coordinated efforts to support and facilitate access to justice for
10. Engages in statewide planning and oversight of the system for
the delivery of civil legal aid to coordinate and support the delivery
of services and to achieve the principles set forth
The ABA Principles envision a state delivery
system that operates as a whole, rather than as the province of only
courts, the bar, individual providers or other stakeholders. The
establishment of a Wisconsin Access to Justice Commission would bring
Wisconsin one step closer to achieving justice for all.
III. Creation And Organization Of The Commission
To achieve progress towards the objectives outlined in the ABA
Principles, a Wisconsin Access to Justice Commission should be created
and empowered by the Court to:
1) Develop and encourage implementation of initiatives to expand
access to the civil justice system for unrepresented low income
2) Work with all stakeholders – low income families, legal
service providers, courts and government agencies, the Governor, the
Legislature, social service providers, the State Bar and all its
members, the law schools and the public – to achieve the standards
set forth in the ABA Principles of a State System for the Delivery of
Civil Legal Aid;
3) Support the efforts of the Wisconsin Trust Account Foundation,
the Equal Justice Fund and others to develop and implement strategies
that will increase funding and other support for access to justice in
4) Work to expand the sources of financial support for legal
services to low income families, so that they will not depend on the
limited support generated by IOLTA funds, mandatory assessments, and the
5) Work to maximize the wise and efficient use of available
resources, including development of local, regional and/or statewide
systems that encourage the coordination of resources and communication
6) Work to reduce barriers to the justice system by addressing
existing and proposed court rules, procedures and policies that affect
access to civil justice for low income Wisconsin residents;
7) Review and periodically report on the overall effectiveness of
Wisconsin’s civil legal services system for low income residents
against an objective set of standards and criteria.
In defining the mission of the Commission, it is useful to point
out what is not proposed:
- The Commission will not supplant WisTAF, serve as any kind of
grant-maker or funding conduit to legal service providers, or seek to
duplicate WisTAF’s expertise in evaluating how to distribute
financial support to legal service providers around the state.
- The Commission will not be engaged in the direct raising of funds
in competition with WisTAF or the Wisconsin Equal Justice Fund. The
Commission will be a partner of these organizations, assisting them in
carrying out their missions.
The Commission’s membership should be broad-based and
inclusive. Experience with the other commissions around the nation
demonstrates that broad-based Commissions are more credible to the
institutions with which they negotiate for support of legal services.
Experience demonstrates that in this field consensus is the key to
change. If the Commission’s membership is broad, the
consensus-building begins at home.
Some fear that a commission made up in part of legislators and
government executives or their designates will be dominated by politics.
That has not been the experience in other commissions. Elected officials
are members of or appoint members to commissions in at least thirteen
states, including one of the most successful state commissions, the
Washington State Access to Justice Board. Involving elected officials in
the work of such a commission enhances the stature of the commission and
makes the officials more familiar with and committed to the work of the
Accordingly, we propose that the Commission should be composed of
not more than 17 members appointed by the Court and nominated as
1. The Supreme Court shall appoint five members, including one
member of the Supreme Court, two additional judges, one representative
from a Legal Services Corporation (LSC) funded Wisconsin legal services
organization and one representative from a non-LSC funded Wisconsin
legal services provider.
2. The State Bar of Wisconsin shall nominate four members,
including the Chair of the State Bar’s Legal Assistance Committee
(or the Chair’s designee).
3. Marquette University Law School shall nominate one member and
the University of Wisconsin Law School shall nominate one member.
4. The Wisconsin Trust Account Foundation shall nominate one
member of its board.
5. The Speaker of the Assembly will be invited to nominate one
member and the President of the Senate will be invited to nominate one
6. The Governor will be invited to nominate three members who are
The membership of the Commission should reflect the ethnic,
gender, geographic, and other diversity of Wisconsin.
Should any vacancy in the term of a member occur, the appropriate
appointing authority should appoint a successor member who will serve
the remainder of the term. Any member whose term expires shall continue
to serve until his or her successor is appointed.
The Commission should designate one member as the chairperson of
the Board who would serve in that capacity for two (2) years and who
would be eligible for reappointment as chairperson for one additional
2-year term. An individual could continue to serve as chairperson
notwithstanding the expiration of his or her term on the Commission.
To implement a staggered term system, Commission members should
be appointed in classes, designated Class I, Class II, and Class III.
The initial appointments of Class I members would end one year from the
date their terms begin; the initial appointments of Class II members
would end two years from the date their terms begin; and the
appointments of Class III members would end three years from the date
their terms begin. All membership terms are for three years other than
the initial Class I and Class II appointments.
(1) Class I members: one appointee each from the members
appointed by the Supreme Court, the Legislature, the Governor and the
State Bar of Wisconsin.
(2) Class II members: one appointee each from
the members appointed by the Supreme Court, the Legislature, the
Governor and the State Bar of Wisconsin.
(3) Class III members: three appointees of the Supreme
Court, two appointees appointed by the State Bar of Wisconsin as well as
one appointee each from the members appointed by the Governor, the
Wisconsin Trust Account Foundation, Marquette University Law School and
University of Wisconsin Law School. The Supreme Court appointments of an
LSC representative and a non-LSC legal service provider representative
will be Class III appointments.
Commission members should be eligible for reappointment for one
additional term. A member should not be reappointed to serve more than
two successive full terms. A member who has served two successive full
terms should be eligible for reappointment after the second anniversary
of the date that the member’s last full term on the Commission
The Commission should be authorized to conduct its work through
the use of committees that are composed in part of persons who are not
voting members of the commission. Such a committee structure will enable
the Commission to tap the particular expertise of particular
stakeholders, such as judges or legislators or fundraisers or legal
service providers, without any one specialized group dominating the work
of the Commission as a whole.
C. Funding & Administration
When the Commission is fully operational, it should be funded by
contributions from the Legislature, the Court and the State Bar. Closing
the justice gap is an objective of all of these major stakeholders, and
not the responsibility of any one. Furthermore, a commission dependent
for its sole support on only one stakeholder is less likely to be
perceived as independent of its funding source.
The State Bar commits to sharing this responsibility. The Court
should likewise. The Court and the State Bar should seek a concomitant
commitment from the Legislature once the Commission is operating.
Recognizing that the Court is unable to quickly allocate the
necessary funds, the State Bar of Wisconsin proposes to provide the full
cost of funding and staffing the commission for its first three years of
operation. We assume that the first, organizational year will cost
approximately $20,000, and that years two and three, in which the
Commission builds its capacity, will cost $50-60,000 each. The funds
will be allocated from a reserve fund that the Bar has established for
access to justice initiatives.
The Commission will not seek funding for its operations from
WisTAF or the Equal Justice Fund. Funding the Commission should not have
the effect of reducing the funding otherwise available for providing
The Commission should meet at least four times each year. All
meetings shall be open to the public and noticed in advance.
The Commission should be required to submit a written report on
its findings, plans and activities to the Chief Justice of the Supreme
Court and the President of the State Bar of Wisconsin at least annually.
More must be done if we are to achieve a justice system that is more
equitable and more accessible. The establishment of a Wisconsin Access
to Justice Study Commission was a key recommendation from the Access to
Justice Study Committee. The State Bar of Wisconsin’s Board of
Governors voted on May 8, 2007 to accept the Access to Justice Study
Committee’s report and adopt its recommendations, including the
recommendation for the creation of a Wisconsin Access to Justice
Commission. We therefore urge the Supreme Court of Wisconsin to adopt
this Petition and establish an Access to Justice Commission in
1Adopted as proposed by the Access to and
Fairness in the Courts Committee of the Conference of Chief Justices in
Baltimore, Maryland, at the 24th Midyear Meeting on Jan. 25,
Respectfully submitted, this 27th day of June,
Thomas J. Basting Sr., President, State Bar of
Diane S. Diel, President-elect, State Bar of Wisconsin
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