March 18, 2010 – In a move supported by the State Bar of Wisconsin, the Legislature’s Joint Finance Committee has approved releasing an additional $1.4 million to support prosecutors around the state in an effort to ease the increased workload caused by a new law increasing penalties for driving while intoxicated.

However, the committee on March 16 also passed on three opportunities to allocate even more support to already-strained district attorney offices in Wisconsin.

The committee first defeated, by a 10-6 vote, a proposal to allocate an additional $487,000 to prosecutors over two years. The committee also voted 13-3 against a separate proposal that would have added another $815,000 to fund 12 new assistant district attorney positions to 12 counties around Wisconsin that had indicated they would incur a higher workload because of the drunk driving law. Finally, the committee defeated on an 11-5 vote a motion to release $4.0 million to fund 27 new prosecutor positions spread among 43 counties.

While prosecutors say they have been underfunded for years, the new drunk driving law, 2009 Wisconsin Act 100, is expected to significantly increase their workload. Among other changes, the legislation makes most fourth drunk driving convictions a felony and also criminalizes first offenses if a child under 16 is in the vehicle.

The proposal Joint Finance did eventually approve on March 16 will provide an additional $700,000 per year to the district attorneys’ salaries and fringe benefits appropriation to address funding reductions for prosecutors under the 2009-11 biennial budget (2009 Wisconsin Act 28). The committee approved this funding, which was requested by Gov. Jim Doyle’s administration, on a 14-2 vote.

Even with the approved additional funding, prosecutors around Wisconsin will still be required to take a total of 16 unpaid furlough days during the current two-year state budget in order to balance the budget. The defeated proposal to allocate an additional $487,000 would have reduced the required furlough days to 10 to balance the budget.

Prosecutors around the state are involved in a dispute with the Doyle administration over furloughs and threatened layoffs. Assistant district attorneys and the state have agreed in their contract to five furlough days each year of the two-year budget, but the Doyle administration is threatening layoffs if prosecutors do not agree to eight furlough days per year.

The State Bar’s Board of Governors has a long-standing public policy position advocating adequate state funding and staffing of DA offices to assure effective prosecution of criminal cases. In a memo distributed to committee members before the vote, the State Bar of Wisconsin advocated for Doyle’s request as well as additional funding.

“The State Bar remains concerned that proposals to further reduce our team of professional prosecutors throughout the state will place added stress on a key part of our criminal justice system that is already chronically underfunded and understaffed,” the memo said. “Delivering justice is one of the most fundamental roles of government, and any cuts further erode the capacity of prosecutors to do the difficult work we ask of them.”

In January 2010, State Bar President Douglas Kammer spoke out about the potential layoffs prosecutors are facing around Wisconsin. State Bar Past President Diane Diel also called for adequate state funding of prosecutors in 2008 and renewed that call last year.

Kammer warned in January that potential funding cuts in county prosecutors’ offices could have “a substantial adverse impact on our justice system.”

Responding to media reports earlier this year indicating that the Doyle administration may require additional unpaid time off for or layoffs of assistant district attorneys, Kammer said at the time, “Such a move would place added stress on a key part of our criminal justice system that is already chronically underfunded.”

A 2007 state audit revealed that Wisconsin has 27% fewer prosecutors than needed to adequately handle the volume of criminal cases referred to them.

“Assistant district attorneys are already required by the state budget to take unpaid furlough days and this step would further erode the capacity of prosecutors to do the difficult work we ask of them,” Kammer added. “The impact of any further reductions affecting prosecutors will be felt well beyond county courthouses in the form of longer delays for justice; inadequate attention to serious crimes; and added stress on the people all of us in Wisconsin rely on to promote justice and protect our safety.”

Besides approving the additional $1.4 million for prosecutors, Joint Finance unanimously voted for an additional $144,900 for the State Public Defender’s private bar appropriation to help cover increased costs under Act 100, the new drunk driving law. The committee also approved $1,963,000 for the Department of Corrections, $231,100 for circuit courts, and $480,500 for the Department of Justice to cover increased costs due to the new law.

Legislature funds additional SPD staff positions; private bar rate increase doubtful

In related developments, Gov. Jim Doyle has signed legislation expanding financial eligibility for the appointment of a public defender, achieving a major State Bar public policy goal.

Gov. Doyle signed 2009 Wisconsin Act 164 into law on Monday, March 15. The bill expands 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.

Beginning in June 2011, the bill authorizes hiring 32 new SPD staff attorneys and 17 support positions to accommodate the anticipated increase in the State Public Defender’s caseload at an estimated cost of approximately $4.6 million annually.

However, prospects for an increase this year in the $40 rate paid to private attorneys who take appointments from the State Public Defender are growing dimmer as the April conclusion of the current legislative session draws closer.

A bill to increase the hourly rate for private bar appointments from $40 to $70 received a tie vote in the Assembly’s Committee on Judiciary and Ethics on March 9. Despite the 4-4 party-line vote, the committee’s chair has reported the bill out of committee. Because the legislation includes the allocation of state funds, legislative leaders have referred it to Joint Finance, which will have to review and approve the bill before it can be scheduled for a full vote of the state Assembly.

The legislation - Assembly Bill 224 - would significantly increase the hourly rate for SPD private bar appointments if ultimately enacted into law. The State Bar has long supported legislation such as AB 224, which was introduced earlier this session by Rep. Frederick Kessler.

To date, similar legislation has not been introduced in the state Senate. If ultimately passed by the Assembly, AB 224 would have to receive a public hearing and committee vote in the Senate and then a vote by the full house, all before the end of regular legislative business in April.

Also, on March 5, several Wisconsin attorneys filed a petition with the Supreme Court to increase the Supreme Court rate under SCR 81.02 to $80 per hour and to index the rate to the consumer price index. The petition would also provide that payment of an hourly rate less than the rate set forth in SCR 81.02(1) for legal services rendered pursuant to appointment by the SPD under Wis. Stat. section 977.08 is unreasonable. A supporting memorandum was also filed.

Several past presidents of the State Bar are among the attorneys who filed the petition, including Patricia K. Ballman, Thomas J. Basting Sr., Michelle A. Behnke, Gregory B. Conway, Franklyn M. Gimbel, Gerald M. O’Brien, G. Lane Ware, and John S. Skilton. Other attorneys named in the petition include Richard T. Becker, Robert H. Friebert, former Wisconsin Supreme Court Justice Janine P. Geske, former Milwaukee County District Attorney E. Michael McCann, Jose A. Olivieri, Timothy W. Burns, and Dean A. Strang.

While the State Bar’s Board of Governors has not yet considered the new petition, it does have an existing public policy position supporting private bar rates “equal to those set by the Wisconsin Supreme Court for court-appointed attorneys.”

Continue to monitor WisBar.org and visit the State Bar’s Government Relations page for updated legislative information.

Related articles:

Governor signs bill expanding public defender eligibility limits - March 17, 2010

Bill to increase SPD private bar rate receives tie vote in committee - March 10, 2010

Board of Governors updates prosecutor funding and staffing policy position - March 4, 2010

State Bar questions further cuts in prosecutor funding - January 8, 2010

State Bar renews call to adequately fund public defenders and prosecutors – Feb. 4, 2009

State Bar asks governor to adequately fund prosecutors and public defenders – July 24, 2008