Jan. 29, 2010 – The state Senate has approved legislation to expand financial eligibility for the appointment of a public defender on a 21-12 bipartisan vote, sending the bill to the Assembly to await a floor vote in that house.
All 18 Senate Democrats were joined by three Republican senators in voting for the bill on Thursday, Jan. 28.
The bill, Senate Bill 263, 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.
Even if eventually approved by both houses of the Legislature, the proposal - introduced in August by Representative Gary Sherman and Senator Spencer Coggs - faces an uncertain future. The Assembly has not yet voted on its version of the bill, Assembly Bill 395. In addition, the legislation is similar to a provision legislators already passed last year as part of the state budget and which Gov. Jim Doyle subsequently vetoed in June. According to recent media reports, one of the legislative authors, Representative Sherman, has said he believes the governor is likely to sign the bill because the fiscal effects are put off until the next biennium.
The State Bar of Wisconsin’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 worked with the State Public Defender (SPD) to enlist support among legislators for the bills.
“It is time for the State of Wisconsin to meet its obligation to make justice accessible to the poor by updating SPD eligibility limits as proposed in AB 395 and SB 263,” said a State Bar memo sent to legislators prior to the vote. “The State Bar of Wisconsin urges you to approve this legislation.”
The Legislature’s Joint Finance Committee approved the bills on a 13-1 vote on Jan. 14. The State Bar urged Joint Finance members to approve the two bills. The legislation required the approval of the powerful budget-writing committee – which controls the purse strings of state government – before it could advance to votes in either legislative house.
In addition, both the Assembly and Senate judiciary committees held a joint hearing on the bills in October 2009. State Bar President Douglas Kammer submitted written testimony at that hearing in support of the legislation, telling the two committees the State Bar supports the increased eligibility levels in AB 395 and SB 263 because “a free society cannot deny justice to the poor and remain free.”
“Outdated eligibility limits for a public defender are part of a mosaic of issues, all related to chronic under-funding of our justice system and lack of access to justice for those of limited means,” President Kammer added. “The need for this legislation is great.”
State budget contained similar provision, which was vetoed
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.
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.
During its deliberations on the state budget last year, the Joint Finance Committee inserted language into the state budget to expand SPD financial eligibility for public defender representation, similar to the language now contained in AB 395 and SB 263.
However, when Gov. Doyle signed the 2009-11 biennial state budget into law on June 29, 2009, he used his line-item veto power to eliminate the Joint Finance eligibility proposal. If not vetoed by Gov. Doyle, the increased eligibility levels would have taken effect at the end of the current biennium, 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 current biennium, they would have had no fiscal effect on the 2009-11 state biennial budget. However, when fully implemented, the estimated cost associated with last year’s Joint Finance proposal would have been $4.6 million annually.
Assembly Bill 395 and Senate Bill 263 are estimated to have similar costs. The legislation would increase the SPD’s caseload by approximately 10 percent or about 13,000 cases per year. Under the bill, SPD staff would be assigned 75 percent of the caseload (an increase from the current 55 percent handled by staff attorneys) and the private bar would be assigned the remaining 25 percent. The State Bar’s Board of Governors supports the allocation of cases the bill proposes.
Separate legislation to increase the statutory $40 per hour rate for private bar SPD appointments to $70 is still pending in the Assembly Committee on Judiciary and Ethics, which is chaired by Representative Gary Hebl. The committee gave that bill, Assembly Bill 224, a well-attended public hearing in June 2009 but has not yet scheduled a vote on the bill, which the State Bar also strongly supports.
Continue to monitor WisBar.org and visit the State Bar’s Government Relations page for updated legislative information.
By
Adam Korbitz, Government Relations Coordinator, State Bar of Wisconsin
Related articles:
Joint Finance approves bills to expand public defender eligibility limits - January 14, 2010
State Bar urges Joint Finance to support expanded public defender eligibility limits - December 16, 2009
State Bar supports expanded public defender eligibility limits at joint hearing - October 7, 2009
Lawmakers continue push for increased public defender eligibility limits – September 2, 2009
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 the State Bar of Wisconsin’s Government Relations e-newsletter that highlights legislative, judicial, and administrative developments that impact the legal profession and the justice system. It is published twice a month 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.
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