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    Vol. 84, No. 8, August 2011

    • Order 05-01B – Cost Assessments in the Lawyer Regulation System, amendments effective Jan. 1, 2012
    • Order 07-11B – Discretionary Transfer of Cases to Tribal Court, written comments due Jan. 1, 2016
    • Order 10-03 – Hourly Rate of Compensation for Court-appointed Lawyers, petition denied
    • Order 10-08 – Right to Counsel in Civil Cases, public hearing Oct. 4, 2011
    • Order 11-01 – Petition for Voluntary State Bar of Wisconsin, petition dismissed

    Cost Assessments in the Lawyer Regulation System

    In the matter of review of amendments to Supreme Court Rules relating to Cost Assessments in the Lawyer Regulation System

    Order 05-01B

    On May 1, 2006, this court issued an order amending the rules relating to the assessment of costs in lawyer disciplinary proceedings effective July 1, 2006. See S. Ct. Order 05-01, 2006 WI 34 (dated May 1, 2006; eff. Jul. 1, 2006). The order provided that the amendments would expire on Dec. 31, 2008, unless the court took further action. On Dec. 1, 2008, the court issued an order ruling it was appropriate for the amendments to continue in effect until further order of this court and stating that the court would conduct a public hearing on the amendments prior to Dec. 31, 2010.

    On Monday, Oct. 4, 2010, the court conducted a public hearing on the amendments. Attorney Dean Dietrich appeared on behalf of the State Bar of Wisconsin and requested the court revise the rules to permit referees to make recommendations regarding costs. Attorney William J. Weigel appeared on behalf of the Office of Lawyer Regulation (OLR) and recommended retaining the rules adopted in 2006. Attorney Daniel L. Shneidman also appeared and presented, inter alia, issues of particular concern to solo and small firm practitioners.

    At the ensuing open administrative conference the court discussed the 2006 amendments and the State Bar recommendation. The majority of the court voted: (1) to amend the rules relating to cost assessments to provide that a referee may make a recommendation to the court regarding costs to be assessed against the respondent; (2) to delete the reference to “extraordinary circumstances” in the provision permitting the court, in its discretion, to reduce costs if warranted by the facts of the case; and (3) to retain the specific criteria in the current rule rather than adopting the criteria submitted by the State Bar. (C.J. Abrahamson, J. Bradley, and J. Crooks dissenting).

    At its open administrative conference on Jan. 12, 2011, the court reviewed a draft order prepared by court staff with input from the OLR and authorized court staff to seek review of the proposed language from Attorney Dean Dietrich on behalf of the State Bar. In February 2011 Attorney Dietrich advised court staff that the proposed changes were acceptable. A working draft of the proposed rule change was posted to the court’s Web site.

    Therefore,

    IT IS ORDERED that the Supreme Court Rules are modified effective Jan. 1, 2012, as set forth herein:

    Section 1. 22.16 (7) of the Supreme Court Rules is created to read:

    22.16 (7) The referee shall file with the supreme court a recommendation as to the assessment of reasonable costs within 10 days after the parties’ submissions regarding assessment of costs.

    Section 2. The following Comment to SCR 22.16 (7) is created to read:

    Comment: The court’s general policy regarding assessment of costs in lawyer disciplinary matters is set forth in SCR 22.24.

    Procedures for filing the statement on costs and objecting to a statement on costs are set forth in SCR 22.24 (2).

    If the respondent does not object to the statement of costs then the referee’s recommendation regarding costs shall be filed within 10 days of the deadline for filing an objection. If an objection is filed the recommendation shall be filed within 10 days after receiving the OLR’s reply to the objection.

    Section 3. 22.24 (1m) (intro) of the Supreme Court Rules is amended to read:

    22.24 (1m) The court’s general policy is that upon a finding of misconduct it is appropriate to impose all costs, including the expenses of counsel for the office of lawyer regulation, upon the respondent. In some cases involving extraordinary circumstances the court may, in the exercise of its discretion, reduce the amount of costs imposed upon a respondent. In exercising its discretion regarding the assessment of costs, the court will consider the submissions of the parties statement of costs, any objection and reply, the recommendation of the referee, and all of the following factors:

    Section 3. 22.24 (2) of the Supreme Court Rules is amended as follows:

    22.24 (2) In seeking the assessment of costs by the supreme court, the director shall file in the court, with a copy to the referee and the respondent, a statement of costs within 20 days after the filing of the referee’s report or a SCR 22.12 or 22.34 (10) stipulation, together with a recommendation to the court regarding the costs to be assessed against the respondent. If an appeal of the referee’s report is filed or the supreme court orders briefs to be filed in response to the referee’s report, a supplemental statement of costs and recommendation regarding the assessment of costs shall be filed within 14 days after the appeal is assigned for submission to the court or the briefs ordered by the court are filed. The recommendation should explain why the particular amount of costs is being sought. Objection to a statement of costs [which may include relevant supporting documentation] shall be filed by motion within 21 days after service of the statement of costs. A respondent who objects to a statement of costs must explain, with specificity, the reasons for the objection and must state what he or she considers to be a reasonable amount of costs. The respondent may file an objection to the statement of costs and recommendation within 21 days after service of the statement of costs. A respondent who objects to a statement of costs must explain, with specificity, the reasons for the objection and must state what he or she considers to be a reasonable amount of costs. The objection may include relevant supporting documentation. The office of lawyer regulation may reply within 11 days of receiving the objection.

    In proceedings before a referee the referee shall make a recommendation to the court regarding costs. The referee should explain the recommendation addressing the factors set forth in SCR 22.24 (1m). The referee shall consider the submissions of the parties and the record in the proceeding. No further discovery or hearing is authorized.

    Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice N. Patrick Crooks dissent from the court’s decision.

    IT IS FURTHER ORDERED that this order shall apply prospectively to disciplinary proceedings, medical incapacity proceedings, or reinstatement proceedings filed on or after Jan. 1, 2012.

    IT IS FURTHER ORDERED that the Comment to SCR 22.16 (7) is not adopted, but will be published and may be consulted for guidance in interpreting and applying SCR 22.16 (7).

    IT IS FURTHER ORDERED that notice of this amendment of Supreme Court Rules 22.16 and 22.24 be given by a single publication of a copy of this order in the official state newspaper and in an official publication of the State Bar of Wisconsin.

    Dated at Madison, Wis., this 6th day of July, 2011.

    By the court:

    A. John Voelker,
    Acting Clerk of Supreme Court

    Discretionary Transfer of Cases to Tribal Court

    In the matter of review of Wis. Stat. § 801.54, discretionary transfer of cases to tribal court.

    Order 07-11B

    On Monday, Oct. 18, 2010, the court conducted a public hearing to review the operation of Wis. Stat. § 801.54 governing the discretionary transfer of cases to tribal court. See S. Ct. Order 07-11, 2008 WI 114 (issued Jul. 31, 2008, eff. Jan. 1, 2009) (Roggensack, J., dissenting), as amended by S. Ct. Order 07-11A, 2009 WI 63 (issued Jul. 1, 2009, eff. Jul. 1, 2009) (Roggensack, J., dissenting). A number of individuals submitted written statements and provided testimony at the public hearing. At the ensuing open administrative conference the majority of the court concurred that the rule was operating as expected and that no action was required. The majority of the court voted to conduct another review of the rule in five years. Justice Patience Drake Roggensack stated her continuing concerns about the constitutionality of the rule as set forth in her dissent to this order. Therefore,

    IT IS ORDERED that the circuit courts, tribal courts, litigants, and attorneys affected by this rule shall advise the court, in writing, regarding their experience of this rule on or before Jan. 1, 2016.

    IT IS FURTHER ORDERED that notice of this order on the review of the operation of Wis. Stat. § 801.54 governing the discretionary transfer of cases to tribal court be given by a single publication of a copy of this order in the official state newspaper and in an official publication of the State Bar of Wisconsin.

    Dated at Madison, Wis., this 1st day of July, 2011.

    By the court:

    A. John Voelker,
    Acting Clerk of Supreme Court

    ¶1 PATIENCE DRAKE ROGGENSACK, J. (dissenting). A majority of this court chooses to close the courts of Wisconsin to those lawfully entitled to their use in order to accommodate the desires of Native American Tribes, who seek to expand the subject matter jurisdiction of their tribal courts. In accommodating the wishes of Native American Tribes, a majority of this court disregards the effect that its decision has on the fundamental constitutional rights of Wisconsin citizens who have chosen Wisconsin circuit courts as their forum. In accommodating the wishes of Native American Tribes, a majority of this court has abandoned citizens to tribal courts that are not obliged to follow either the United States Constitution or the Wisconsin Constitution. In accommodating the wishes of Native American Tribes, a majority of this court contravenes the oath of office that each justice took to protect the Constitution of the United States and the Constitution of the State of Wisconsin. In accommodating the wishes of Native American Tribes, a majority of this court has engineered legislation that changes the substantive rights of the litigants; and therefore, is in excess of this court’s rule-making authority granted by the legislature in Wis. Stat. § 751.12.

    ¶2 I have great respect for Native American Tribes and the very valuable contributions that tribal courts make to the administration of justice. However, that respect cannot overcome my constitutional obligations to citizens or expand the authority granted by Wis. Stat. § 751.12. Accordingly, I respectfully dissent.

    I. BACKGROUND

    ¶3 On July 1, 2008, a majority of this court legislated to create Wis. Stat. § 801.54, which permits the transfer of civil cases pending in Wisconsin circuit courts to tribal courts, over the objections to transfer of tribal members and nonmembers. S. Ct. Order 07-11, 307 Wis. 2d xvii, xxi (eff. July 31, 2008). I dissented from that order. Id. at xxiii. I did so because: (1) tribal court concurrent subject matter jurisdiction rarely exists when nonmembers are parties; (2) § 801.54 gives no guidance on the standards to be applied in evaluating whether tribal courts have concurrent subject matter jurisdiction; and (3) § 801.54 contravenes Wis. Stat. § 751.12(1) by altering substantive rights of the parties to civil litigation. Id.

    ¶4 On July 1, 2009, a majority of this court extended tribal court jurisdiction over tribal members and nonmembers further by permitting the transfer of “post-judgment child support, custody or placement provision of an action in which the state is a real party in interest pursuant to s. 767.205(2) to a tribal court located in Wisconsin.” S. Ct. Order 07-11A, 316 Wis. 2d xiii (eff. July 1, 2009 as Wis. Stat. § 801.54(2m)). These transfers are done without the requirement of a hearing in the circuit court to determine whether there is concurrent subject matter jurisdiction in tribal courts. Id. Once again, I dissented, id. at xx, and was ignored by a majority of this court who elevated the wishes of Native American Tribes over the constitutional rights of the citizens who have chosen Wisconsin courts as their forum.

    ¶5 Today a majority of this court affirms the expanded potential for infringement of the constitutional rights of tribal members and nonmembers by continuing the nonconsensual transfers into tribal courts for those who have chosen the circuit courts of Wisconsin. S. Ct. Order 07-11B (eff. July 1, 2011). Again, I dissent.

    ¶6 Who looks out for the unrepresented litigant whose constitutional rights are not represented in tribal court? Who looks out for the unrepresented litigant when the tribal court that will judge a nonmember’s case combines law and tribal religion and it is not the nonmember’s religion? Apparently no Wisconsin court, including this one.

    II. DISCUSSION

    ¶7 Today’s order is an affirmation of the deprivation of the rights of litigants in cases involving child custody, child placement and child support, as these litigants are transferred into tribal courts without their consent and without a hearing in circuit court prior to the transfer. This court is fond of saying that no right is more fundamental than the rights of a parent to the care and custody of his or her child. Dane Cnty. Dep’t of Human Servs. v. Ponn P., 2005 WI 32, ¶22 n.5, 279 Wis. 2d 169, 694 N.W.2d 344. Apparently, a majority of this court forgets its own jurisprudence when it suits its purposes to do so. This majority does not make even an attempt to address the fundamental rights it assigns to tribal courts, over which courts this court has no jurisdiction.

    A. Constitutional Concerns

    ¶8 Child custody and child placement decisions involve the most fundamental of constitutional rights: the right to the care and custody of one’s children. Stanley v. Illinois, 405 U.S. 645, 651 (1972); State v. Shirley E., 2006 WI 129, ¶¶ 23-24, 298 Wis. 2d 1, 724 N.W.2d 623.

    ¶9 The fundamental rights of parents are protected by the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, 262 U.S. 390, 399 (1923), and the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). However, these amendments to Wis. Stat. § 801.54 are contrary to our obligation to uphold the Constitutions of the United States and the State of Wisconsin.

    ¶10 As the United States Supreme Court repeatedly has explained, the United States Constitution is not binding on tribal courts. Plains Commerce Bank v. Long Family Land & Cattle Co., 128 S. Ct. 2709, 2724 (2008) (citing Talton v. Mayes, 163 U.S. 376, 382-85 (1896)). However, litigants in Wisconsin courts are protected by the United States Constitution and the Wisconsin Constitution. See Dep’t of Admin. v. WERC, 90 Wis. 2d 426, 434-35, 280 N.W.2d 150 (1979). The Constitutions provide the framework in which the courts of the State of Wisconsin are obligated to operate. See State v. Cockrell, 2007 WI App 217, ¶34 n.10, 306 Wis. 2d 52, 741 N.W.2d 267. That constitutional framework includes the United States Constitution’s Bill of Rights and the Wisconsin Constitution’s Declaration of Rights. Helgeland v. Wis. Municipalities, 2008 WI 9, ¶13, 307 Wis. 2d 1, 745 N.W.2d 1. However, as separate sovereigns antedating the Constitutions, Indian tribes have “historically been regarded as unconstrained by those [federal] constitutional provisions framed specifically as limitations on federal or state authority.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978).

    ¶11 In considering the nonconsensual transfers of child custody and child placement issues to tribal courts, it is also important to note that both the United States Constitution and the Wisconsin Constitution require the separation of church and state. U.S. Const. amend. I; Wis. Const. art. I, § 18. Separation of church and state is one of the basic tenets of our democracy. However, tribal courts do not separate church and state; instead, tribal courts impose their religious values as custom and tradition that informs the tribal courts’ view of the law.1

    ¶12 Wisconsin courts have no power to review decisions on child custody, child support or child placement made after transfer to tribal court because those decisions will be made by an independent sovereign not accountable to Wisconsin courts. Even federal courts cannot review tribal court decisions in the normal course of a federal court review. Duro v. Reina, 495 U.S. 676, 709 (1990) (Brennan, J., dissenting). Instead, federal review of tribal court decisions is provided by a separate action for habeas corpus. Id.

    ¶13 This lack of direct review of tribal court decisions is a significant deprivation of guaranteed procedural rights. As Justice Kennedy recognized, “[t]he political freedom guaranteed to citizens by the federal structure is a liberty both distinct from and every bit as important as those freedoms guaranteed by the Bill of Rights.” United States v. Lara, 541 U.S. 193, 214 (2004) (Kennedy, J., concurring).

    ¶14 Notice of transfer to a tribal court to unrepresented parents presumes both that the parents know how their interests will be addressed in tribal court and that they will ask for a hearing if they want one. Neither presumption has merit.

    ¶15 First, how will the unrepresented parent know what procedures and substantive rights will be accorded in tribal court? I do not have the answers to those questions, nor does a majority of this court, although I repeatedly requested that the court get this information before Wis. Stat. § 801.54 was enacted on July 1, 2008.

    ¶16 Second, if litigants do not know how matters proceed in tribal court, how can they make an informed decision about whether to request a hearing before the transfer and how can they know what concerns to bring to the circuit court if they do request a hearing?

    ¶17 The process the majority has established runs roughshod over the constitutional rights of parents. Stanley, 405 U.S. at 656-57 (instructing that efficient procedures cannot trump the constitutional rights of parents). Furthermore, the genesis of the tribes’ petition for the second amendment to Wis. Stat. § 801.54, which a majority affirms today, was asserted to be the tribes’ desire to collect federal funds that will be forthcoming if the tribes established mechanisms for the collection of delinquent child support.

    ¶18 If that were the reason for Native American Tribes’ request for this legislation, it was not necessary to that purpose to connect child custody and child placement decisions to the collection of child support. Furthermore, making that connection impacts the most fundamental of constitutional rights, the right to the care and custody of one’s child.

    B. Concurrent Jurisdiction

    ¶19 Tribal court concurrent subject matter jurisdiction is almost non-existent when a nonmember is a party to the lawsuit. The United States Supreme Court carefully explained that in its 2008 decision in Plains Commerce Bank. Plains Commerce Bank, 128 S. Ct. at 2722. A majority of this court ignores Plains Commerce Bank because it is contrary to the wishes of Native American Tribes.

    ¶20 Furthermore, it is beyond dispute that tribal court subject matter jurisdiction is established by federal laws and United States Supreme Court precedent. Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 851-52 (1985). Stated otherwise, “whether a tribal court has adjudicative authority over nonmembers is a federal question”; it is not decided under state law or tribal law. Plains Commerce Bank, 128 S. Ct. at 2716 (citing Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 15 (1987)).

    ¶21 The United States Supreme Court has explained that tribal court concurrent subject matter jurisdiction is extremely limited when nonmembers are among the parties to an action. Montana v. United States, 450 U.S. 544, 565-66 (1981). The United States Supreme Court recently has affirmed that tribal court jurisdiction over nonmembers for conduct that occurs off tribal land is almost nonexistent, having been upheld on only one occasion. Plains Commerce Bank, 128 S. Ct. at 2722. The Court has also said, “[T]ribes do not, as a general matter, possess authority over non-Indians who come within their borders:
    ‘[T]he inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.’” Id. at 2718-19 (quoting Montana, 450 U.S. at 565).

    ¶22 Even when nonmember conduct occurs on tribal land, the general rule is that tribes lack subject matter jurisdiction over nonmembers. Montana, 450 U.S. at 565. Tribes “may” have concurrent subject matter jurisdiction over nonmembers: (1) to “regulate … the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements,” and (2) to regulate nonmember conduct that “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” Id. at 565-66. But as the Court’s recent discussion of Montana in Plains Commerce Bank shows, the two exceptions to the preclusion of subject matter jurisdiction in tribal courts are not to be broadly interpreted; rather, they are extremely limited. Plains Commerce Bank, 128 S. Ct. at 2720.

    ¶23 In Plains Commerce Bank, tribal members (the Longs) sued a nonmember (Plains Commerce Bank) in tribal court, alleging that the bank discriminated against them when it sold property. Id. at 2715-16. The Longs further alleged that the property sales had arisen directly from their preexisting commercial relationship with the bank, and accordingly, the sales fell within the first Montana exception to the general rule that tribes lack jurisdiction over nonmembers. Id. The tribal jury awarded $750,000 in damages. Id. at 2716. The bank then brought a declaratory judgment action in federal court asserting that the tribal court lacked subject matter jurisdiction to adjudicate the claims, and therefore, the judgment was void. Id.

    ¶24 The Supreme Court agreed with the bank. The Court began by explaining that the sovereign powers of tribes are limited by virtue of the tribes’ “incorporation into the American republic.”2 Id. at 2719. In so incorporating, the tribes generally lost the right to govern persons coming within tribal territory except for tribal members.3 Id.

    ¶25 In any attempt to exert jurisdiction over nonmembers, “[t]he burden rests on the tribe to establish one of the exceptions to Montana’s general rule” that precludes jurisdiction over nonmembers. Id. at 2720. The burden of proof rests with the tribe to establish that concurrent jurisdiction exists in tribal court because of the general rule that a tribal court does not have subject matter jurisdiction to adjudicate claims involving nonmembers.

    ¶26 Wisconsin Stat. § 801.54 is in conflict with that requirement of federal law because under § 801.54(2), a circuit court can transfer a case to tribal court on its own motion. Therefore, a tribe would not be the moving party who carries the burden to prove that there is concurrent subject matter jurisdiction, as is required by the United States Supreme Court in Plains Commerce Bank. The circuit courts of Wisconsin cannot make a discretionary transfer to tribal courts, sua sponte, and still comply with this aspect of federal law. Stated otherwise, requiring the tribe to prove that there is concurrent subject matter jurisdiction over a litigant who is not a member of the tribe is a prerequisite for the exercise of concurrent subject matter jurisdiction by tribal courts. Section § 801.54 is contrary to federal law when it relieves the tribes of this burden.

    ¶27 The United States Supreme Court also has explained that “a tribe’s adjudicative jurisdiction does not exceed its legislative jurisdiction.” Id. at 2720 (internal quotation omitted). This is an important principle because if a tribe could not pass a law that bound the conduct and the parties whose claims and defenses a tribal court attempts to adjudicate, then the tribal court lacks concurrent subject matter jurisdiction over those claims and defenses.4 Id. Tribes do not have the legislative jurisdiction to enact a law that will establish a nonmember’s child custody and child placement rights to his or her child. See Jacobs v. Jacobs, 138 Wis. 2d 19, 26-28, 405 N.W.2d 668 (Ct. App. 1987).

    ¶28 Furthermore, the contention that a court lacks subject matter jurisdiction may be raised at any time, even after judgment. See Arbaugh v. Y&H Corp., 546 U.S. 500, 506-07 (2006); see also Fed. R. Civ. P.
    12(h)(3). In addition, subject matter jurisdiction cannot be created by waiver or consent. See United States v. Hazlewood, 526 F.3d 862, 864 (5th Cir. 2008).

    C. Wisconsin Stat. § 751.12(1)

    ¶29 This court’s power to legislate, which we speak of as “rule-making,” is derived from Wis. Stat. § 751.12(1), which provides in relevant part:

    “The state supreme court shall, by rules promulgated by it from time to time, regulate pleading, practice, and procedure in judicial proceedings in all courts, for the purposes of simplifying the same and of promoting the speedy determination of litigation upon its merits. The rules shall not abridge, enlarge, or modify the substantive rights of any litigant.” (Emphasis added.)

    ¶30 Prior to the creation of Wis. Stat. § 801.54, all litigants who satisfied the statutory provisions for jurisdiction in Wisconsin courts had a statutory right to avail themselves of the Wisconsin court system. See Wis. Stat. § 801.04. Wisconsin’s open courthouse doors provide a significant, substantive right for tribal members as well as nonmembers. However, since § 801.54 has become effective, the courthouse doors of Wisconsin have been closed to some litigants, both tribal members and nonmembers. This limitation of the substantive rights of litigants is contrary to the express provisions of Wis. Stat. § 751.12(1), which provides that any statute that this court creates “shall not abridge, enlarge, or modify the substantive rights of any litigant.”

    III. CONCLUSION

    ¶31 In conclusion, a majority of this court chooses to close the courts of Wisconsin to those lawfully entitled to their use in order to accommodate the desires of Native American Tribes, who seek to expand the subject matter jurisdiction of their tribal courts. In accommodating the wishes of Native American Tribes, a majority of this court disregards the effect that its decision has on the fundamental constitutional rights of Wisconsin citizens who have chosen Wisconsin circuit courts as their forums. In accommodating the wishes of Native American Tribes, a majority of this court has abandoned citizens to tribal courts that are not obliged to follow either the United States Constitution or the Wisconsin Constitution. In accommodating the wishes of Native American Tribes, a majority of this court contravenes the oath of office that each justice took to protect the Constitution of the United States and the Constitution of the State of Wisconsin. In accommodating the wishes of Native American Tribes, a majority of this court has engineered legislation that changes the substantive rights of the litigants; and therefore, is in excess of this court’s rule-making authority granted by the legislature in Wis. Stat. § 751.12.

    ¶32 I have great respect for Native American Tribes and the very valuable contributions that tribal courts make to the administration of justice. However, that respect cannot overcome my constitutional obligations to citizens or expand the authority granted by Wis. Stat. § 751.12. Accordingly, I respectfully dissent.

    ¶33 I am authorized to state that Justice Annette Kingsland Ziegler and Justice Michael J. Gableman join in this dissent.

    1 Tribal Law and Order Act of 2008: Hearing Before the S. Comm. On Indian Affairs, 1-2 (July 24, 2008) (statement of Roman J. Duran, Vice President, National American Indian Court Judges Association).

    2 The court in Plains Commerce Bank v. Long Family Land & Cattle Co., 128 S. Ct. 2709, 2721 (2008), cited two limited types of exceptions that involved the regulation of nonmember activities on reservation land “that had a discernible effect on the tribe or its members”: Williams v. Lee, 358 U.S. 217 (1959) (concluding the tribe had jurisdiction over a contract dispute between a non-Indian and an Indian on the reservation) and Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980) (upholding tribal determination of the taxing authority of the tribe for activities by non-Indians on reservation land). The Court cited other cases that also upheld tribal determinations involving taxes for activities within tribal land.

    3 In Plains Commerce Bank, the Court pointed out that tribal courts lack jurisdiction over: a “tort suit involving an accident on non-tribal land”; the regulation of “hunting and fishing on non-Indian fee land”; and taxation of nonmember activities on non-Indian fee land. Id. at 2722.

    4 In Plains Commerce Bank, the tribe lacked “the civil authority to regulate the Bank’s sale of its fee land,” and therefore, the tribal court could not adjudicate the circumstances under which the land sales were made. Id. at 2720-21.

    Hourly Rate of Compensation for Court-appointed Lawyers

    In the matter of the petition to amend Supreme Court Rules 81.02.

    Order 10-03

    This petition1 asks the court to amend Supreme Court Rule (SCR) 81.02 by increasing the hourly rate of compensation for court-appointed lawyers from $70 to $80, indexing that rate to the Consumer Price Index, and specifying that the 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 State Public Defender under Wis. Stat. § 977.08 is unreasonable. The petitioners provided the court with documentation in support of the petition, including: ABA, Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice, (December 2004); ABA, Findings Concerning Contracting for the Delivery of Indigent Defense Services, (July 1995); and The Spangenberg Group, Rates of Compensation Paid to Court-Appointed Counsel in Non-Capital Felony Cases at Trial: A State-By-State Overview, (June 2007).2 The petitioners submitted a supplemental filing on Sept. 29, 2010, responding to certain written questions from the court. Written comments from interested parties were also received.

    On Nov. 9, 2010, the court conducted a public hearing on this petition.3 Attorney John Skilton presented the petition and a number of individuals spoke regarding the petition.4 The testimony presented to the court was often eloquent and very informative. At the ensuing open administration conference the court discussed the matter at length.

    This petition requires an understanding of the sometimes complicated interplay of statutes and rules that govern which defendants are sufficiently indigent to qualify for representation, who represents these indigent criminal defendants, how these lawyers are compensated for their services, and who pays the bills.

    It is a fundamental cornerstone of our justice system that indigent criminal defendants are constitutionally entitled to effective assistance of counsel. Gideon v. Wainwright, 372 U.S. 335 (1963); In re Gault, 387 U.S. 1 (1967); Argersinger v. Hamlin, 407 U.S. 25 (1972). In Gideon, the United States Supreme Court said:

    “That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.” 372 U.S. at 344.

    Consistent with this constitutional mandate, Wisconsin law requires the appointment of counsel for all eligible indigent criminal defendants.

    The Wisconsin State Public Defender’s Office (SPD) provides legal representation to qualified defendants in cases specified by state law.5 Applicants for public defender representation are required by state law to meet strict financial guidelines to qualify for appointment of an attorney by the SPD.

    However, SPD staff attorneys cannot represent all the people who are entitled to representation. The law provides that if the SPD has a conflict of interest or is otherwise unable to represent an eligible indigent defendant, the SPD will appoint and pay for a private attorney to provide representation. See Wis. Stat. §§ 977.05(4)(i), (j), (jm); 977.05(5)(a); 977.07; 977.08.6 Because of the budget constraints imposed on the SPD, private attorneys currently handle approximately 40%-45% of all indigent representations.

    These appointed lawyers are paid $40 per hour.7 See Wis. Stat. § 977.08. This is the same rate Wisconsin paid private attorneys for these services 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.

    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).8

    The petitioners assert that the low hourly rates have increasingly caused qualified and/or experienced lawyers to decline SPD appointments. For many lawyers, their basic office overhead costs (such as malpractice insurance, rent, staffing costs, work-related travel, law school loan payments) exceed the compensation rate that is paid by the SPD. In short, they lose money if they agree to represent these criminal defendants. SPD appointed lawyers may feel pressure to resolve cases early with a plea because they cannot afford the time to prepare for a trial even if their client wants one. SPD attorneys are managing increasingly heavy caseloads which affects the amount of time they can spend on each case.

    If lawyers are unavailable or unwilling to represent indigent clients at the SPD rate of $40 per hour, or when clients do not qualify under existing SPD eligibility standards but nonetheless are unable financially to retain counsel, judges then must appoint lawyers at county expense. See State v. Dean, 163 Wis. 2d 503, 471 N.W.2d 310 (Ct. App. 1991).

    These court-appointed lawyers are compensated at a rate that is established by the supreme court in SCR 81.02. Since 1994 SCR 81.02 has set compensation for court-appointed lawyers at $70 per hour.9 Counties are thus required to reimburse court-appointed counsel at the $70 per hour rate.10

    This admittedly simplified background brings us to the petition pending before this court. The petition asks the court to raise the rate for court-appointed attorneys from $70 per hour to $80 per hour, adopt a provision tying the compensation rate to the Consumer Price Index, and, perhaps most significantly, adopt a newly created SCR 81.02(3), which would state the “payment of an hourly rate less than the rate set forth in Supreme Court Rule 81.02(1) for legal services rendered pursuant to appointment by the State Public Defender under Wisconsin Statutes section 977.08 is unreasonable.”

    Adopting proposed 81.02(3) would constitute a challenge to the compensation rate set by the legislature in Wis. Stat. § 977.08. The petitioners have repeatedly tried to persuade the legislature to address the issue of compensation rates for SPD appointed attorneys. Although the legislature recently acted to expand eligibility for SPD representation and has approved additional staff positions to cover the anticipated increase in cases,11 the last action taken by the legislature on compensation rates was in 1995 and was to reduce the rate to $40 per hour in court or out of court and $25 per hour travel time. Then State Public Defender Nick Chiarkas stated in a written submission to this court:

    “Each biennium since [1996], the Wisconsin State Public Defender Board has requested a private bar rate increase. We have made every argument for the rate increase that our collective intelligence and experience could generate. The agency’s budget request has never been included in the Governor’s budget bill.”

    A threshold question for this court is whether this court has the authority to effectively declare a legislative mandate “unreasonable.” The petitioners urge that we do. The petitioners state:

    “This Court has inherent power to ensure the effective administration of justice in the State of Wisconsin, which necessarily includes the power to set reasonable attorneys’ fees and, conversely, to declare inadequate fees ‘unreasonable.’ See, e.g., State ex rel. Friedrich v. Circuit Court for Dane Cnty, 192 Wis. 2d 1, 531 N.W.2d 32 (1995) (discussed in answer to the second question below). This is particularly true in instances involving the appointment of defense counsel for indigents charged with crimes where the right to the effective assistance of counsel is constitutionally guaranteed. See Gideon v. Wainwright, 372 U.S. 335 (1963). Assuming that the legislature has the power to set rates, even if that power is a shared one, and it fails to set a ‘reasonable’ rate, this Court may, indeed it must, act. Here, a rate which is essentially confiscatory, was set more than 15 years ago, and has not been changed despite, for example, the Consumer Price Index having risen by 52%, is prima facie ‘unreasonable’ and because of legislative inaction, this Court has the duty to step in and make the necessary adjustments. Indeed, § 751.12(2), Stats., expressly authorizes the Supreme Court to modify or suspend ‘statutes relating to pleading, practice and procedure.’ For a rate as to which ‘reasonableness’ is time-dependent, determination, periodic adjustment is inherently necessary as this Court itself recognizes in existing SCR 81.02(1).”

    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.

    However, we express sincere concern because we recognize that indigent criminal defense programs in Wisconsin are inadequately funded. While it can be difficult to demonstrate a clear correlation between inadequate funding and legal representation that falls below constitutional requirements the petitioners have provided extensive anecdotal evidence that supports their assertion that funding shortfalls may compromise the right to effective assistance of counsel.

    This funding crisis is not unique to Wisconsin. Across the nation, there are reports of systemic issues where inadequate funding has compromised the ability of the adversary system to function properly, including disturbing reports of innocent people incarcerated because of ineffective legal representation. Several states have faced court challenges related to inadequate funding for criminal representation.

    Yet we also recognize and acknowledge that this is a particularly challenging budgetary environment. Legislators are required to make difficult funding decisions with inadequate resources while striving to support many worthy programs. Several counties have advised us that they oppose this petition because they simply cannot afford it.

    However, our 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.

    IT IS ORDERED that the petition is denied.

    Justice David T. Prosser concurs in the result.

    Dated at Madison, Wis., this 6th day of July, 2011.

    By the court:

    A. John Voelker,
    Acting Clerk of Supreme Court

    1 This rule petition was filed on March 5, 2010, by Attorneys Dean A. Strang, John S. Skilton, and Timothy W. Burns on behalf of Patricia K. Ballman, Thomas J. Basting, Sr., Richard T. Becker, Michelle A. Behnke, Gregory B. Conway, Robert H. Friebert, Janine P. Geske, Franklyn M. Gimbel, Ralph Johnson, E. Michael McCann, Gerald M. O’Brien, Jose A. Olivieri, and G. Lane Ware, all members in good standing of the State Bar of Wisconsin.

    2 All of these documents are available on the court’s Web site at: www.wicourts.gov/scrules.

    3 Initially, this matter was scheduled for public hearing on Oct. 19, 2010. Immediately prior to the start of the public hearing on Oct. 19, 2010, the State Capitol building was evacuated by Capitol Police for a period of several hours. As a result the administrative conference was cancelled. The matter was rescheduled and conducted on Nov. 9, 2010.

    4 Attorneys Dean Strang, Robert Friebert, Dave Jones, Ray Dall’Ostro, John Ebbott, Brian Gleason, John Birdsall, and Hank Schultz spoke in support of the petition. Carlo Esqueda, Dane County Clerk of Circuit Court, expressed concern about the proposed use of the Consumer Price Index as a basis for future rate increases. Sara Diedrick of the Wisconsin Counties Association, Mark Wadium, a lobbyist for Outagamie County, and John Barrett, Milwaukee County Clerk of Circuit Court, all spoke in opposition to the petition. Attorney Deb Smith advised the court that the Office of the State Public Defender took no formal position on the petition.

    5 These cases include criminal, civil commitment, protective placement (personal guardianship), revocation of conditional liberty (probation, parole, or extended supervision), termination of parental rights, and juvenile delinquency proceedings and certain other juvenile court matters.

    6 The legislature requires that the SPD handle 67% of all felony and juvenile indigent representation, and the private bar therefore no more than 33% of indigent clients in those cases. Wis. Stat. § 977.08(5)(c).

    7 In 1978, when the legislature established the SPD’s role in circuit courts, the hourly rate of compensation for appointed lawyers was $35 ($25 for travel time). In 1992 the legislature increased private bar compensation to $50 for in-court time and $40 for out-of-court time; travel time remained unchanged at $25. However, in 1995, the legislature reduced the in-court rate to create a uniform $40 hourly rate. The $25 hourly rate for travel remained unchanged. The rate has not changed since 1995.

    8 See http://www.ca7.uscourts.gov/cja/cjarates.htm.

    9 In 1994 the supreme court increased the hourly compensation under SCR 81.02 from $60 to $70 after hearing argument and evidence that the $60 rate (a) was significantly lower than the average hourly rate charged by Wisconsin lawyers; (b) was not much higher than the office overhead rate for most lawyers; (c) reduced the number of experience[d] lawyers taking court-appointed cases; and (d) impeded the provision of and reduced the quality of legal services to persons in need of these services.

    10 The petition states that in calendar year 2008 alone, “Wisconsin’s counties expended at least $5,965,186 on court-appointed counsel for indigent defendants, according to figures that the SPD maintains. Especially in less populous counties, that expense can be significant.”

    11 In 2010 the Legislature enacted 2009 Wisconsin Act 164, which expanded financial eligibility for public defender representation from the previous level set in 1987 (based on Aid to Families with Dependent Children limits) to current W-2 limits. It authorized 45 new SPD staff positions to handle the anticipated increased caseload that will result from the expanded eligibility guidelines. In April 2011 the Joint Finance Committee (JFC) voted to approve funding for 45 new SPD positions to handle the workload generated by expanded eligibility standards for criminal defendants that will take effect June 19, 2011.

    The JFC also approved Gov. Walker’s budget proposal to increase funding to help fill the hole in the perennially under-funded SPD private bar appropriation, which has repeatedly run out of money during the second year of the biennium. The SPD budget as approved by JFC increases the private bar appropriation by $3.6 million. This will not cover the entire shortfall in the next biennium because it will not address a projected shortfall of $3.5 million for the current 2009-11 biennium, which ends June 30, 2011. The remaining shortfall this year will be carried forward into the next biennium and added to the projected shortfall in fiscal year 2013.

    Right to Counsel in Civil Cases

    In the matter of the petition to establish a right to counsel in civil cases.

    Order 10-08

    On Sept. 30, 2010, John F. Ebbott, Executive Director, Legal Action of Wisconsin, on behalf of various signatories, including citizens/residents, judges, and lawyers, petitioned this court for an order establishing the right to counsel in civil cases.

    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 Tuesday, Oct. 4, 2011, 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 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 the hearing.

    Dated at Madison, Wis., this 6th day of July, 2011.

    By the court:

    A. John Voelker,
    Acting Clerk of Supreme Court

    Petition to Establish a Right to Counsel in Civil Cases

    The Wisconsin residents signing below hereby petition this Court as follows:

    1. WHEREAS, this country is founded on the principle set forth in the Declaration of Independence, that it is a self-evident truth that all persons are created equal; and

    2. WHEREAS, the United States Supreme Court has declared that “there can be no equal justice where the kind of trial a [person] gets depends on the amount of money [s]he has,” Griffin v. Illinois, 351 U.S. 12, 19 (1956), and that “there are fundamental principles of liberty and justice which lie at the base of all our civil and political institutions … The right to the aid of counsel is of this fundamental character,” Powell v. Alabama, 287 U.S. 45, 67-68 (1932); and

    3. WHEREAS, the American Bar Association in 2006 passed the following resolution:

    The American Bar Association urges federal, state and territorial governments to provide legal counsel as a matter of right at public expense to low-income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody, as determined by each jurisdiction;

    and

    4. WHEREAS, the interests at stake in civil cases are significant, involving basic human needs, including children, food, clothing, shelter, heat, medical care and safety, and their loss has serious consequences; and

    5. WHEREAS, the adversary system of justice used in this State allocates to the parties the primary responsibility for discovering the relevant evidence and finding the relevant legal principles and presenting them to a neutral judge or jury, and discharging these responsibilities generally requires the knowledge and skills of a legally-trained professional; and

    6. WHEREAS, thousands of indigent litigants in Wisconsin go through civil court proceedings without the aid of counsel; and

    7. WHEREAS, pro se civil litigants in Wisconsin are a substantial and growing part of state trial courts’ caseloads, and unsophisticated and inexperienced pro se litigants complicate the court process, burden the entire system, and create the risk of a miscarriage of justice;

    8. WHEREAS, the trial courts are in the best position, and are best able, to determine, in the exercise of their discretion, when counsel in civil cases should be provided; and

    9. WHEREAS, affording indigent litigants a right to counsel at public expense 1) provides equal justice to poor people caught up in the courts and 2) provides relief to the courts themselves; and

    The signatories to this petition, Wisconsin residents, hereby request that the Wisconsin Supreme Court amend Supreme Court Rule 11.02 by adding a Section (2), so that Rule 11.02 will provide as follows:

    (1) Appearance by attorney. AUTHORIZED. Every person of full age and sound mind may appear by attorney in every action or proceeding by or against the person in any court except felony actions, or may prosecute or defend the action or proceeding in person.

    (2) Appearance by attorney. PROVIDED. Where a civil litigant is indigent (defined as below 200% of the federal poverty guidelines), the court shall provide counsel at public expense where the assistance of counsel is needed to protect the litigant’s rights to basic human needs, including sustenance, shelter, clothing, heat, medical care, safety and child custody and placement. In making the determination as to whether the assistance of counsel is needed, the court may consider the personal characteristics of the litigant, such as age, mental capacity, education, and knowledge of the law and of legal proceedings, and the complexity of the case.

    SIGNED:

    Petition for a Voluntary State Bar of Wisconsin

    In the matter of the petition for a voluntary State Bar of Wisconsin.

    Order 11-01

    On Feb. 14, 2011, Attorneys Steven Levine and James Thiel filed a petition requesting this court to amend, repeal, or recreate Supreme Court Rule (SCR) Chapter 10 to create a voluntary State Bar of Wisconsin. On Wednesday, June 1, 2011, the court met in open administrative conference to discuss whether to conduct public hearings on several rules petitions, including this one.

    The petition asks the court to “take whatever steps may be necessary” to convert the State Bar of Wisconsin from a mandatory bar to a voluntary bar. It does not propose amendments to the current rules to effectuate the requested rule change. The petitioners acknowledge that SCR Ch. 10 would have to be substantially restructured if the court were to make state bar membership voluntary. The petition proposes that the court “appoint a committee to propose a new SCR Ch. 10 and how the transition should occur” if the court does decide to grant the petition.

    At the open administrative conference, the court noted that current guidelines for administrative rule petitions require petitioners to provide a thorough, detailed explanation of each amendment and reasons for the change. The court discussed whether the petitioners should be required to propose draft rule language that would effectuate the policy change requested in this petition.1 The court acknowledged that crafting draft rules to effectuate the proposal to disband the mandatory bar would be a significant undertaking. Some members of the court questioned whether the petitioners should be required to prepare proposed rules with no certainty that the court would be favorably inclined toward establishing a voluntary bar. The court noted that a concrete proposal for discussion will foster more specific feedback from interested parties and will better enable the court to identify or clarify issues that would arise if the petition is granted.

    Ultimately, the court voted to dismiss the petition based on form because it does not contain proposed rule language to effect the policy proposal contained in the petition. The petitioners retain the option of resubmitting a petition that includes the elements set forth in footnote 1, above. Justices Annette Kingsland Ziegler and Michael J. Gableman dissented from the court’s decision.

    IT IS ORDERED that the petition is dismissed.

    IT IS FURTHER ORDERED that notice of the dismissal of this petition be given by a single publication of a copy of this order in the official state newspaper and in an official publication of the State Bar of Wisconsin.

    Dated at Madison, Wis., this 6th day of July, 2011.

    By the court:

    A. John Voelker, Acting Clerk of Supreme Court

    1 The current guidelines for rule petitions state that the petition shall, at a minimum:

    • • explain whether the petitioner seeks to amend or create a statute or rule,
    • • identify the statute or rule being changed or created,
    • • provide a thorough, detailed explanation of each amendment and reasons for the change,
    • • explain how the proposed amendment would affect any person’s procedural or substantive rights,
    • • identify experience of other state or federal courts, if applicable,
    • • analyze the fiscal and administrative impacts, if any, of the proposal,
    • • list any related petitions pending before the court, and
    • • list the committees, agencies, and individuals that the petitioner has consulted about the proposal.



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