April 8, 2009 – The co-chairs of the Wisconsin Legislature’s Joint Finance Committee have announced that the committee will begin executive action on 2009 Assembly Bill 75, the proposed 2009-2011 biennial budget, on Thursday, April 16. The committee recently concluded a series of public hearings around the state. Last week, State Bar President Diane S. Diel shared several of the State Bar’s concerns regarding the budget with the committee.

While important challenges remain for Wisconsin’s justice system, the proposed biennial state budget, introduced by Gov. Jim Doyle on Feb. 17, contains several initiatives the State Bar of Wisconsin has supported for many years. These include:

• Increased funding in the second year of the budget for civil legal services to indigent persons; funding would be increased from $1 million to $1.25 million to help fund civil legal services for low-income individuals;
• Biennial funding increased by $490,600 to reimburse counties for court interpreter services and mileage reimbursement paid to interpreters;
• Continued funding of one staff person for the Judicial Council (the legislature restored funding for this position two years ago, for the first time since 1995).
• The governor’s proposed budget provides $500,000 PR and 2.0 FTE PR positions to carry out recommendations of the Governor's Commission on Reducing Racial Disparities in the Criminal Justice System.

The governor also included several other noteworthy policy items that the State Bar supports, including restoring the ability of insureds to stack coverage of auto liability insurance policies, a right which the legislature eliminated in 1995. In addition, the budget proposes significant changes to the laws governing contributory negligence and joint and several liability. In general, the budget would restore the common law rules of contributory negligence and joint and several liability as they existed prior to revisions by 1995 Wisconsin Act 17. Restoring the pre-1995 law in this regard has been a long-standing position of the State Bar.

The budget news is less sanguine when it comes to funding of the criminal justice system. The budget significantly reduces funding for district attorneys, and it provides no increase for additional staff attorneys at the State Public Defender. The budget also contains no increase in the $40 per hour rate paid to private bar attorneys who take SPD cases, nor does it make whole the current deficit in the private bar appropriation used to pay private bar attorneys (the current appropriation is currently in deficit and may not be sufficient to cover bills through July 1, although the State Public Defender has been working with the Doyle administration and the Department of Administration to remedy this problem).

The State Bar is concerned about a provision in the budget that places legislative caps on attorney fees in land condemnation cases.  This provision, sought by the Department of Transportation, is contrary to a longstanding Board of Governors’ position against legislative caps on attorney compensation, including contingency fees.   Attorney fees are a matter of contract subject to judicial review; limits on contingent fees adversely affect the ability of those whose land is being condemned by the government to obtain a fair price for their property. (On Tuesday, April 7^th, the co-chairs of the Joint Finance Committee announced that this provision would be removed from the budget.)

The budget also proposes the elimination of administrative hearings before the Equal Rights Division of "no probable cause" findings regarding complaints alleging discrimination in employment, housing, public accommodations; violations of the family and medical leave law; state whistleblower statutes; or complaints alleging discrimination for exercising rights under public employee occupational safety and health statutes. Instead, the budget provides for review of no probable cause findings in circuit court. On February 27, 2009 the Board of Governors adopted a public policy position opposing the elimination of these no probable cause hearings before an administrative law judge. (On Tuesday, April 7^th, the co-chairs of the Joint Finance Committee announced that this provision would be removed from the budget; therefore, the budget will not eliminate no probable cause hearings.)

Fortunately, the governor’s budget does not propose an expansion of the sales tax to legal or other professional services, a measure some legislators have recently advocated publicly. The State Bar’s government relations staff will continue to work with legislators to head off any efforts to insert such a tax into the budget.

Because the 2009-11 budget originated in the Assembly (as AB 75), the bill – as amended by the Joint Finance Committee – will be considered first by that chamber and then by the Senate. Any differences between the two versions of the budget must then be resolved before final legislative approval and review by the governor. While all of this work should, in theory, be completed before the end of the 2007-09 biennium on June 30, work on past budgets has often extended beyond that date.

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 website for the most current information about justice-related issues.

© 2009, State Bar of Wisconsin