This article was updated at 4:10 p.m. on May 18.

May 18, 2018 – This week, the Wisconsin Supreme Court raised the hourly rate paid to lawyers for court-appointed cases, from $70 to $100, but declined to take action regarding the $40 rate paid to private bar attorneys who take public defender cases.

The Wisconsin Association of Criminal Defense Lawyers (WACDL) and 33 other petitioners asked the Court to raise the court-appointment pay, which is governed by Supreme Court Rule, Chapter 81, and has not changed since 1994. After the public hearing, the Court agreed to raise the court-appointment rate, likely effective July 1.

However, the Court declined to take the petitioners’ requested action on another part of the petition, which dealt with the $40 hourly rate paid to private attorneys who take overflow and conflict cases from the State Public Defender (SPD). That rate has changed little since 1978, when the hourly compensation rate was set at $35 per hour.

At a public hearing on Wednesday (May 16), members of the Court questioned whether it has authority to take any action, noting the SPD rate paid to private bar attorneys – and the funding that it requires – is set by the Wisconsin Legislature.

“I’m with you. $40 is abysmal,” said Justice Daniel Kelly. “But the question is whether the court has the authority to tell a county or the state to appropriate the money.”

In a petition (17-06) and at the public hearing, numerous attorneys argued that this $40 rate, the lowest in the country, has created a “constitutional crisis” because fewer and fewer attorneys can afford to take appointments from the SPD, leaving indigent defendants unrepresented or languishing in jail without legal representation.

Under U.S. Supreme Court’s 1963 decision in Gideon v. Wainwright, all states have an obligation to provide (and pay for) legal representation for indigent criminal defendants.

The petitioners asked the Supreme Court to declare the $40 per hour rate as “unreasonable,” hoping a court declaration would generate momentum for a legislative change that has not occurred despite repeated requests in the last 40 years.

“We are asking you to take minimal action that we think could push us in the right direction,” said Crandon attorney Henry Schultz, who filed the petition on behalf of the petitioners along with co-counsel John Birdsall, a Milwaukee criminal defense attorney.

The petitioners also argued that the Court has inherent authority, a co-equal branch of government with authority over the court system, to declare the rate unconstitutional.

But several justices appeared hesitant without an actual case before them, and repeatedly questioned its own authority to delve into an area with a fiscal impact.

“Do we have the power to tell counties how much to spend on attorneys?” Justice Kelly asked. “Do we have the power to tell the legislature how much to spend on attorneys?”

The Supreme Court, through a spokesperson, informed the State Bar of Wisconsin of its decision this week and noted that an official order will follow. The State Bar’s Board of Governors supported Petition 17-06 and State Bar President Paul Swanson was one of the named petitioners.

Public Hearing

More than 15 people spoke at the public hearing May 16, including Birdsall, Schulz, Kelli Thompson, who heads the State Public Defender Office, Fran Deisinger, immediate past president of the State Bar, and Norman Reimer, executive director of the National Association of Criminal Defense Lawyers in Washington, D.C.

Many more submitted comments regarding petition 17-06, which addressed the SPD rate issue for the second time in eight years. As Birdsall noted, the Supreme Court declined a previous request on SPD rate issue in 2011.

In its 2011 order denying the petition, the Court acknowledged that “our criminal system is reaching a breaking point” and expressed “sincere concern because we recognize that indigent criminal defense programs in Wisconsin are inadequately funded.”

Yet, the Court acknowledged it as a funding crisis: “If this funding crisis is not addressed we risk a constitutional crisis that could compromise the integrity of our justice system.”

This week, Birdsall reminded the Court of its previous order and said something has changed since then. “We have come to this Court to emphasize that we are in crises, as you found in 2011,” Birdsall said. “Seven years later, it has only gotten worse.”

But the justices voiced concern about the court’s authority on the SPD rate. “What are the limits of our authority? Where does it stop?” Justice Rebecca Bradley asked.

Birdsall, citing case precedent, argued that the Supreme Court can exercise its judicial power over an executive branch “when it comes to the efficient and proper administration of the courts,” and it’s the state’s obligation to fulfill Gideon.

“Let me just lay the cards on the table,” said Justice Kelly, the most active justice of the day. “I know how you can get all the money that you need to fund public defenders.”

Kelly suggested that if the legislature started seeing cases in which defendants are released from jail because an SPD-appointed lawyer is not available, “the legislature will go into special session and raise this rate so fast it will make your head swell.”

“To come at this from the Sixth Amendment analysis, you’re talking about a class action lawsuit,” Birdsall said. “That’s not something we want to bring to Wisconsin.”

Chief Justice Patience Roggensack asked whether there would be any benefit the cause if the Court raised the chapter 81.02 pay for court-appointed lawyers and delayed the SPD rate to provide time for the legislature to act without a directive from the court.

“It couldn’t hurt,” Birdsall said.

Others Weigh In

SPD Kelli Thompson said the SPD’s private bar attorneys, which handle about 40 percent of public defender cases, are essential to indigent defense in Wisconsin.

“The low rate of reimbursement is having a significant and in some places dire impact on the provision of representation in conflict of interest cases,” Thompson said.

If the court were to say the $40 rate is unreasonable, it will continue to move the argument forward, Thompson said. “At $40, I can no longer find attorneys to take cases. We are down, in certain counties, to zero private bar attorneys.”

Thompson said the private bar rate has been a No. 1 priority in the SPD’s budget requests for decades, and stand-alone legislation has failed every session. She said more legislators are starting to get involved, signing on, and asking questions.

“It is because they are hearing from other justice partners,” she said. “It’s hearing from the courts, it’s hearing from the prosecutors, it’s hearing from local county boards.

“The No. 1 issue right now is the private bar rate because of the length of time we fear that people are staying in custody,” said Thompson, noting the court can help, as it has previously, advocate for more resources and shine a light on this issue.

Reimer, the executive director of the National Association of Criminal Defense Lawyers, said Wisconsin Supreme Court was considering an issue at the “epicenter of a national crisis of public defense” in the U.S. “We have been searching for an answer to this problem for years, and we believe the answer lies with the courts,” he said.

“We did not come out here because we want lawyers to get a raise,” he said. “We are here because people’s rights are being lost. It’s affecting human lives every day.”

Reimer said the court has the authority to raise the rate and strike down fixed fee contracts that apply when a private bar attorney agrees to handle multiple cases.

He also suggested that the Supreme Court could issue a court rule that says a defendant must be released if a lawyer is not provided within “X” period of time, or the case must be dismissed if a defendant doesn’t get a lawyer within “Y” period of time.

“It seems clear that without the action of the court, it’s not going to change,” Reimer said. “What we need in this country, in Wisconsin, is a recognition that this right must be respected. It’s not just a piece of paper, or a word. Actual human lives are at stake.”

Reimer said plaintiffs have filed class action lawsuits in numerous states on this representation issue. “You could wait for that day to come. It will take years, and it will cost the state hundreds of thousands of dollars. They have to defend it,” he said.

Immediate State Bar Past-President Fran Deisinger also testified, noting that the State Bar’s 52-member board voted to support the petition, with only one dissenting vote.

“There is this tension here, between the fiscal impact … and the constitutional right to counsel,” Deisinger said. “We all understand that that is the tension. But we cannot look away from the first duty of this court. We need your leadership on this issue.”

Marcie Rainbolt, a government affairs associate at the Wisconsin Counties Association, cautioned against raising the court-appointment rate from $70 to $100 (as noted, the court did raise the rate). She said it will place a greater financial burden on the counties.

If the $40 SPD rate remains unchanged, she said the counties will be required to fill the gap with court-appointed attorneys, at a higher rate. Rainbolt also said disallowing flat fee contracts would strain county budgets (the Court did not bar flat fee contracts).

The Court may have more to say about this issue in a final order, but the Court has indicated, via court spokesperson, that petition 17-06 will be adopted in part (court-appointment rate increased to $100), and denied in part (related to SPD rate).

“Raising the rate for court-appointed counsel is obviously welcome and a step in the right direction,” Birdsall said after learning of the court’s decision. “However, the lack of lawyers to handle the vast majority of the 58,000 cases that are farmed out from the SPD to private lawyers will soon overwhelm an already highly stressed system in the coming year or two.”

“We have drafted a comprehensive plan that will restructure and permanently fix this system and would be willing to work with the governor or any interested legislators, so we can make Wisconsin a model for the nation.”

Related Article

Country’s Lowest Pay Rate for SPD Appointments Equals Constitutional Crisis – InsideTrack (May 3, 2017)