Wisconsin Supreme Court denies civil Gideon petition
Jan. 20, 2012 – The Wisconsin Supreme Court has decided to deny a rules petition that would have created a right to publicly funded counsel for indigent litigants in certain civil cases, commonly referred to as “civil Gideon.”
The court took the unanimous action during an open administrative conference on Jan. 19, 2012.
The denied petition would have provided that in certain civil actions, an indigent litigant (defined as below 200% of the federal poverty limit) would have an attorney appointed at public expense when needed to protect the litigant’s rights to “basic human needs, including sustenance, shelter, clothing, heat, medical care, safety and child custody and placement.”
The petition was filed in September 2010 by attorney John F. Ebbott, the executive director of Legal Action of Wisconsin (LAW) and received a public hearing on Oct. 4, 2011.
The court will release the final order dismissing the petition after editing. In a released draft order, the court dismisses the petition because it “does not fit within SCR 11.02,” which relates to appearance by attorney.
The draft order also states that “although the court denies the petition, the court reaffirms its commitment to work with attorneys, the State Bar and local bar associations, the circuit courts, clerks of circuit courts, court commissioners, court staff, the University of Wisconsin Law School, Marquette University Law School, the public and private colleges and universities of the state, and providers of legal services to indigents to help meet the needs of low income persons for legal assistance.”
The draft order also recognizes that the Wisconsin Access to Justice Commission (WATJ) has established a working group to examine potential pilot projects that could evaluate the costs and benefits of providing legal counsel to low income litigants in certain types of civil legal matters. The court also indicated that it hopes the data compiled from such a project will assist the court in developing a biennial budget request to provide additional state funding for the appointment of counsel for indigents as required by law.
The supreme court created the WATJ in June 2009 at the request of the State Bar of Wisconsin “to develop and encourage means of expanding access to the civil justice system for unrepresented low income Wisconsin residents.” Pursuant to the 2009 order creating the commission, the State Bar agreed to fund commission staff for at least its first three years of existence.
State Bar supported civil Gideon concept in principle
At its meeting on Sept. 23-24, 2011, the State Bar of Wisconsin’s Board of Governors (Board) voted to support the civil Gideon concept in principle without supporting or opposing any specific petition. State Bar President Jim Brennan presented the Board’s position to the court at the Oct. 4, 2011 public hearing.
According to the Board’s position, “The State Bar of Wisconsin affirms the historic duty accorded to the Wisconsin Supreme Court by the Wisconsin Constitution to exercise ‘superintending and administrative authority over all courts,’ including its inherent supervisory power over the practice of law. The State Bar supports policies which encourage or enhance the quality and availability of legal services to the public, including persons unable to afford legal representation in civil cases.”
In his remarks to the court on Oct. 4, 2011, Brennan emphasized the State Bar’s history of supporting the right to counsel, as well as judiciary’s historic role in appointing counsel for indigent litigants. According to Brennan, the Wisconsin Supreme Court should reinvigorate this core judicial function, as part of its constitutional, superintending authority over the judiciary, to ensure that litigants in our courts are adequately represented in civil cases, on a case-by-case basis.
Other action
Also at its open administrative conference on Jan. 19, the court continued work on its final order granting petition 11-03, relating to court security and facilities, which would repeal SCR 70.38-39 and create SCR ch. 68. The court held a public hearing on that petition on Jan. 11, 2012.
Director of State Courts John Voelker submitted petition 11-03 on the recommendation of the Wisconsin Supreme Court’s Planning and Policy Advisory Committee (PPAC). In his supporting memo, Voelker said a “separate chapter will recognize the importance of security policy and procedure development, implementation and monitoring as a function of the judiciary while also recognizing the cooperative relationship between the state and counties in the construction and maintenance of Wisconsin’s courthouses.”
Continue to monitor WisBar.org and visit the State Bar’s Government Relations page for updated information on these issues.
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