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    Wisconsin Lawyer
    November 01, 2001

    Wisconsin Lawyer November 2001: Legislative Watch

    Justice Without Partisan Boundaries

    2001 Assembly Bill 536 restores a bipartisan plan to adequately fund the Office of the State Public Defender, thus preventing a tax shift from the state to the local level in paying for indigent representation.

    by Sheryl K. Albers & Brian B. Burke

    OUR CRIMINAL JUSTICE SYSTEM rests on five very important foundations: law enforcement personnel, prosecutors, defense attorneys, judges, and prisons. When we unduly burden one or more of these foundations, we fail in our responsibility to maintain a fair and just process.

    While we need to carefully review funding in all areas of our justice system, indigent representation remains our most pressing concern. In 1963 the U.S. Supreme Court determined that the Sixth Amendment to the U.S. Constitution grants every citizen the right to legal representation in a court of law when accused of a felony, even if the citizen cannot afford an attorney. In Gideon v. Wainwright,1 the Supreme Court enunciated that "reason and reflection" required the Court "to recognize that, in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him." The Gideon decision laid the groundwork for subsequent U.S. Supreme Court decisions expanding the right to counsel to also include misdemeanor cases.

    States decide how they will fulfill the constitutional duty to provide counsel to the poor. Wisconsin does so in three ways: attorneys in the Office of the State Public Defender (SPD); private bar attorneys contracted at $40 per hour with the SPD; and private bar attorneys appointed by local judges, usually paid at the $70 per hour rate specified by Wisconsin Supreme Court rule. SPD representation and SPD contract attorneys not only provide the least expensive method of providing representation, but also the funding for both derives from general purpose revenue (income and sales tax revenues). On the other hand, private bar attorneys appointed by local judges are paid from county funds - at property taxpayer expense.

    Federal and state case law does not delineate exactly what fixed income level constitutes indigency. However, most courts will appoint counsel for someone at or below the federal poverty level. Section 977.07(2) of the Wisconsin Statutes establishes criteria for obtaining counsel through the SPD. However, even those guidelines do not resolve the appointment of counsel question before local judges. In 1991 the Wisconsin Supreme Court held, in State v. Dean,2 that such criteria cannot serve to deny counsel to an otherwise-indigent individual:

    "The court should consider all relevant evidence presented by the defendant that is material to the defendant's present ability to retain counsel. The trial court must disregard the public defender's established cost of retained counsel ... and consider the fees charged by local private counsel in similar cases. The review at this stage will ultimately involve examining on a case-by-case basis, factors and circumstances that the legislature is ill equipped to consider."

    Wisconsin's SPD standards fall well below the federal poverty standard; thus, state taxpayers do not foot the bill for anyone who would not otherwise receive representation under the U.S. Constitution.

    Gov. McCallum originally cut nearly 5 percent from the SPD budget - the largest cut of any state agency. To manage these cuts, the SPD estimated it would need to lay off one out of every seven assistant public defenders. Members of both parties on the Joint Committee on Finance found this possibility unacceptable, and we successfully developed a bipartisan plan that realized cost savings, while maintaining our constitutional duties. In order to reduce overall costs, the plan included hiring 60 new state attorneys and establishing a new state office to handle conflicts cases. We support raising the hourly contract rate to a more reasonable amount; however, that was not possible due to revenue shortfalls. The committee unanimously approved the plan, and it remained unchanged until it reached the governor's desk.

    Unfortunately, Gov. McCallum used his veto pen to once again cut the SPD budget and its attendant positions. However, due to legislative repositioning of funds during the budget process, the problem shifted from having to lay off state-employed attorneys to not having enough money to contract with needed private bar attorneys. In the end, the overall cut to the SPD currently stands at more than 8 percent of its base budget, a devastating blow to an agency that recently received a Forward Wisconsin award for efficient management.

    SPD attorneys currently operate with statutory caseloads 23 percent higher than national standards. Demanding that they represent more clients would jeopardize their ethical responsibility to provide effective counsel. In addition, with the private bar appropriation decimated, the SPD expects to run out of contract money by June 30, 2002 - the end of the first year of the biennium. When that occurs, the SPD will have no choice but to advise private bar attorneys asked to take cases beginning on July 1, 2002, that they will not receive payment for their work until July of 2003. The SPD presently reports difficulty contracting with private bar attorneys, given the low statutory contract rate of $40 per hour. The prospect of a 12-month payment delay undoubtedly will result in few private bar attorneys willing to take SPD appointments after June 30, 2002.

    When this anticipated scenario occurs, the burden will rest upon circuit court judges to appoint attorneys to handle cases. If all judges were to appoint attorneys at the minimal Wisconsin Supreme Court rate of $70 per hour (and some counties already pay more), it could cost property taxpayers as much as $33,250,000 for one year of representation, based on current county caseloads. For example, the SPD estimates the veto will cost Milwaukee County up to $11,037,322; Brown County could experience $1,597,651 in new legal service fees. Of course, caseloads also could increase in the next two years, creating an even bigger fiscal problem.

    Rep. Sheryl   K. AlbersRep. Sheryl K. Albers, attends the U.W. Law School. Elected to the Assembly in 1991, she currently serves as a ranking member of the Joint Committee on Finance.

    Sen. Brian B.   BurkeSen. Brian B. Burke, Georgetown 1981, is a former Milwaukee County assistant district attorney. Elected to the Senate in 1988, he currently serves as Senate chair of the Joint Committee on Finance.

    The indigent will receive representation. To restore the fiscally responsible bipartisan plan, the Wisconsin Legislature must allocate $3,267,900 to the SPD. If the legislature does not act, attorney bills totaling up to $33,250,000 will hit the doors of county courthouses next fall. To prevent this tax shift from the state to the local level, we joined with 50 Assembly and 20 Senate colleagues to introduce 2001 Assembly Bill 536. However, we need members of the legal profession to collectively request expedient action on our legislation before next June, and we encourage members of the State Bar to contact their legislators to ask for their support of this important legislation.

    Wisconsin maintains a world-renowned public representation system, led by Dan Berkos, chair of the Public Defender Board. The SPD consistently receives state, national, and international accolades for providing effective and efficient criminal defense services to the indigent. In fact, Nicholas Chiarkas, our state public defender, founded Justice Without Borders, an international organization to improve criminal justice systems worldwide. We understand that a well-balanced legal system creates a more stable and safe society. In Wisconsin, the Office of the State Public Defender is a foundation of our legal system that deserves protection through bipartisan policies reflecting sound economic judgment and an understanding of our constitutional duties. Justice, after all, knows no partisan boundaries.

    Endnotes

    1 Gideon v. Wainwright, 372 U.S. 335 (1963).

    2 State v. Dean, 163 Wis. 2d 503 (1991).


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