June 29, 2018 – The Wisconsin Supreme Court has issued a final order regarding a petition to raise the hourly rate that lawyers are paid to take court-appointed cases, and the rate that private bar attorneys are paid to take State Public Defender appointments.

Last month, the Supreme Court announced its decision to raise the rate paid to court-appointed lawyers, such as guardians ad litem, from $70 per hour to $100. The rate paid to court-appointed lawyers is governed by Supreme Court Rule (SCR) 81.02.

The $70 rate has not changed in 25 years. The final order confirms the increase with an effective date of Jan. 1, 2020. The court declined to include a provision for automatic cost-of-living adjustments to the $70 rate but will review the rate every two years.

In addition, the court last month dismissed another aspect of the petition – filed by the Wisconsin Association of Criminal Defense Lawyers (WACDL) and other parties – which asked the court to declare that the $40 rate paid to private lawyers who take appointed cases from the State Public Defender (SPD) is “unreasonable.” The SPD rate, unlike the rate for court-appointed lawyers, is set by the Wisconsin Legislature.

In the final order, the Supreme Court (5-2) explained why it declined to declare the $40 rate “unreasonable” but highlighted major concerns for indigent defendants who have a right to effective counsel and suggested lawmakers should act before a “confrontation in the form of a constitutional challenge” reaches the Supreme Court’s docket.

“We are highly mindful of the separation of powers and do not engage in direct confrontation with another branch of government unless the confrontation is necessary and unavoidable,” the final order states. “We thus decline to use our administrative regulatory process to undermine a legislative enactment.”

At the public hearing in May, members of the court noted that constitutional questions come to the court as “cases and controversies,” not as supreme court rule petitions.

“We hope that a confrontation in the form of a constitutional challenge will not occur and trust that the legislature will work with the courts, the SPD, the petitioners, the counties, and other justice partners to ensure adequate funding for the SPD that is urgently needed to forestall what is clearly an emerging constitutional crisis.”

Court Recognizes Crisis

Although the court deferred to the legislature, it noted that the $40 rate paid to private bar attorneys – who handle about half of the SPD’s cases – is inadequate.

“That Wisconsin’s compensation rate for SPD-appointed attorneys is abysmally low is not in dispute,” the order states. “Wisconsin’s $40/hour compensation rate is the lowest in the entire nation. It has been unchanged since 1995.”

The court also noted that repeated attempts to raise the rate have failed. “Since 1999, 18 separate formal efforts to obtain a rate increase have been tried and failed,” the petition notes. In addition, SPD budget requests have never been included in the final budget, and no stand-alone bills have ever received a public hearing or a vote.

“Forty dollars an hour does not even cover a lawyer’s overhead expenses,” the court noted, "and the SPD confirmed that the number of attorneys willing to take the cases has steadily declined. That is highly problematic for the criminal justice system," it noted.

Counties, especially rural counties, have great difficulty finding attorneys to take the cases. Marathon County reported that it took 80 contacts and 17 days to appoint a lawyer. In Ashland County, it has taken, on average, 24 days to appoint an attorney.

The Constitution is implicated when underfunding is the cause of delays and defendants don’t have representation that is constitutionally guaranteed, the court noted.

“We agree that the consequence – significant delays in the appointment of counsel – compromises the integrity of the court system and imposes collateral costs on criminal defendants and their families, and on all citizens of this state: jobs lost, additional expenses incurred, and justice denied,” the final order states. “We have a constitutional responsibility to ensure that every defendant stands equal before the law and is afforded his or her right to a fair trial as guaranteed by our constitution.”

Similar Issue in Other States

The court noted what has happened in other states to address inadequate funding of indigent criminal defense. In Massachusetts, for instance, the Massachusetts Supreme Judicial Court deferred to the legislature to raise the statutory compensation rate.

But the court issued an order for prosecutors to show cause why a pretrial detainee should not be released after seven days if no lawyer was appointed, and to show cause why the charges should not be dismissed after 45 days without a lawyer.

“Facing the imminent release of criminal defendants, the Massachusetts State Legislature promptly convened a special session and passed a bill increasing compensation for indigent defense attorneys,” the court noted.

In other states, class-action lawsuits were filed. In Michigan, for example, litigation lasted six years before the Michigan legislature finally passed reform legislation.

Although the Wisconsin Supreme Court expressed no authority to declare a legislative mandate “unreasonable” through a rule petition, it said “the court might, in a different procedural posture, be called upon to rule on the constitutionality of the statutory rate.”

Rate for Court-Appointed Lawyers

While the court found the SPD rate to be within the purview of the legislature, it said the court’s authority over the rate for court-appointments enjoys “long-standing precedent.”

“Indeed, while compensation of court-appointed counsel is generally described as an area of shared authority, the judiciary has the ultimate authority to set compensation for court-appointed counsel,” the final order states.

In addition, the court noted that “the counties’ obligation to pay the costs of court-appointed counsel has also been settled for well over a century.” The court said the $100 rate is “reasonable and necessary” to ensure counsel will be available.

However, the court noted that the increase will have a “profound impact on existing county budgets,” especially because fewer attorneys are taking SPD appointments at $40, which may require a court appointment, at county cost, at $100 per hour.

“Thus, costs for indigent defense, which should be borne by the state as a whole, are being shifted to individual counties,” the court’s final order notes.

The delay in effective date, to Jan. 1, 2020, would give lawmakers more than a year to address the indigent defense funding issue while counties make budgeting decisions.

Dissent

Justice Daniel Kelly dissented, joined by Justice Rebecca Bradley. They agreed that the $70 rate paid to court-appointed lawyers is “absurdly inadequate.” But Kelly argued that the Supreme Court has no authority or control over the “power of the purse.”

“Funds may leave the treasury only pursuant to an appropriation, appropriations must be made by law, a law is created by a bill, bills are adopted through the exercise of legislative power, and legislative power belongs in the legislature,” Kelly wrote.

“Nowhere in that seamless whole is there any room for the judiciary to insert itself. Quite clearly … our constitution puts the spending power beyond the judiciary’s reach.”

Justice Kelly said SCR 81.02, which governs the pay rate that attorneys receive in court-appointed cases “trespass[es] on the authority to appropriate funds.”

“I am keenly aware that I stand in a long succession of minds who have already considered this question, and nonetheless continued the tradition,” he wrote.

“But the judiciary cannot expand its authority into the legislative domain through adverse possession, or the legislature’s long acquiescence.”

Justice Kelly said evidence that indigent defendants remain jailed for extended periods without counsel is “deeply disturbing,” but the legislative branch controls the purse.

“The Constitution may have something to say about the predicament of such defendants; it would be unfortunate if a declaration on that question were necessary,” wrote Justice Kelly, referring to indigent defendants who have a right to counsel.

But he said the judiciary cannot make decisions about taxpayer dollars. “The petitioners must address themselves to the legislature, something I know they have done many times before. Perhaps persistence will grant them a more responsive audience.”