Sept. 2, 2009 – State lawmakers have introduced bills in both houses of the state Legislature to expand financial eligibility for the appointment of a public defender, following Governor Jim Doyle’s June veto of similar legislation that lawmakers had inserted into the state budget.
Representative Gary Sherman (a past president of the State Bar of Wisconsin) and Senator Spencer Coggs have introduced Assembly Bill 395 and Senate Bill 263, both of which would expand state financial eligibility for public defender representation from the antiquated 1987 AFDC limits to current W-2 limits, which generally are 115 percent of the federal poverty level. The proposal is similar to what legislators passed earlier this year in the state budget and which the governor vetoed.
The State Bar’s Board of Governors has a long-standing position in favor of using federal poverty guidelines as minimum financial criteria for determining indigence and eligibility for constitutionally mandated appointment of counsel, and consistent with that position State Bar lobbyists have been working with the State Public Defender (SPD) to enlist support among legislators for the bills.
The Assembly bill has been referred to the Committee on Judiciary and Ethics, which is chaired by Representative Gary Hebl. In the Senate the bill has been sent to the Committee on Judiciary, Corrections, Insurance, Campaign Finance Reform, and Housing, chaired by Senator Lena Taylor. Like Representative Sherman, both Representative Hebl and Senator Taylor are members of the State Bar. Hearings on the bills are expected during the upcoming fall legislative session.
Separate legislation to increase the statutory $40 per hour rate for private bar SPD appointments to $70 is also pending in Representative Hebl’s committee. The committee gave that bill, Assembly Bill 224, a well-attended public hearing in June but has not yet scheduled a vote on the bill, which the State Bar also strongly supports.
Because financial eligibility standards for public defender representation are set by statute and have not been updated since 1987, many of Wisconsin’s poorest citizens are left without access to public defender representation.
According to information made available by the SPD, an individual with no dependents who is charged with a misdemeanor whose gross income is $60 per week (approximately 30 percent of the federal poverty level) and who has a $300 bank account and a $2000 car would not qualify for a public defender under current standards. An individual with two dependents charged with either a misdemeanor or a felony and whose gross income is $260 week (approximately 80 percent of the federal poverty level) and who has similar financial assets as the first example would also not qualify.
Individuals who do not qualify for public defender representation often do not have enough money to afford a private attorney. In such case, courts must appoint a lawyer at county taxpayer expense. However, defendants are often provided county-appointed counsel in one county, yet a similarly situated defendant – or sometimes even the same defendant – may be denied an appointed attorney in another county. This disparity raises questions as to whether Wisconsin is meeting its constitutional duty to provide adequate legal representation to indigent defendants.
State lawmakers have previously introduced bills in the 2003, 2005 and 2007 legislative sessions to update and simplify the eligibility criteria. Despite broad, bipartisan support, none of those bills passed before those sessions ended.
Earlier this year during its deliberations on the state budget, the Joint Finance Committee inserted language into the state budget to expand SPD financial eligibility for public defender representation to 115 percent of the federal poverty level. The changes proposed by Joint Finance were essentially identical to the 2007 legislative proposals which the Legislature did not pass. The 2007 bills would have increased the eligibility limits for a public defender from the antiquated 1987 AFDC limits to current W-2 limits, which generally are 115 percent of the federal poverty level.
When Gov. Doyle signed the 2009-11 biennial state budget into law on June 29, days after the Senate and the Assembly passed the compromise spending plan on largely party-line votes the previous week, he used his line-item veto power to eliminate the Joint Finance eligibility proposal, which was similar to that now introduced by Representative Sherman and Senator Coggs.
If they had not been vetoed by Gov. Doyle, the increased eligibility levels would have taken effect at the end of the next biennium, on June 30, 2011.
As part of that now-vetoed plan, the Legislature had approved hiring 32 new SPD staff attorneys and 17 support positions to accommodate the anticipated increase in the State Public Defender’s caseload. Because the changes would not have been effective until the last day of the next biennium, they would have had no fiscal effect on the 2009-11 state biennial budget. However, when fully implemented, the estimated cost associated with this year’s Joint Finance proposal would have been $4.6 million annually. The bills introduced this summer by Representative Sherman and Senator Coggs have similar provisions and costs.
In his budget veto message regarding the increased eligibility standards, the governor said in June, “I am vetoing these provisions because of the additional cost and positions associated with implementing the higher standard. This veto returns the indigency standard to current law and deletes the positions associated with the increase. I remain committed to ensuring adequate representation of individuals with limited income.”
Adam Korbitz is the Government Relations Coordinator for the State Bar of Wisconsin.
Continue to monitor WisBar.org and visit the State Bar’s Government Relations page for updated legislative information.
Related articles:
Governor signs state budget into law – June 29, 2009
Joint Finance expands SPD eligibility, boosts indigent civil legal services – May 27, 2009
Rotunda Report is a new newsletter, issued once every two weeks, from the State Bar of Wisconsin that highlights legislative, judicial and administrative developments that impact the legal profession and the justice system. It is produced by the Bar’s Government Relations Team and is distributed free to attorneys, public officials and others who help shape public policy in Wisconsin. We invite your suggestions to make the Rotunda Report more informative and useful and we encourage you to visit our Web site for the most current information about justice-related issues.
© 2009, State Bar of Wisconsin
