Feb. 23, 2009 – 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 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 expected to be exhausted in April, and private bar attorneys will not be paid again until after July 1).

The governor also proposes, as he did two years ago, to consolidate certain state agency attorneys into a proposed Division of Legal Services within the Department of Administration. The new division would provide legal services to other executive branch agencies except the Department of Public Instruction and the Department of Justice. The governor also proposes creating a politically-appointed chief legal advisor – outside of the civil service system – in eight executive branch departments.

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, the Board of Governors adopted a public policy position opposing the elimination of these no probable cause hearings before an administrative law judge.

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.

The budget also contains several other items that may directly affect many State Bar members or their practice (the State Bar has not taken a position on these issues, although in some cases individual State Bar sections may have taken positions in the past):

• 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 proposed budget expands eligibility for record expungement to include individuals up to 25 years of age, and to include nonviolent Class H to I felonies, allowing more young people to learn from their mistakes and start a new life with a clean slate.
• The bill also provides requirements for the creation and termination of domestic partnerships and guarantees various legal rights for those in a domestic partnership, affecting areas of law as diverse as the probate code, family and medical leave laws, end of life decisions and the rules of evidence.
• The governor also recommends extending benefits offered by the Group Insurance Board and the Wisconsin Retirement System to domestic partners of state employees, including University of Wisconsin faculty and academic staff.

The budget has been referred to the Joint Committee on Finance, which includes eight members from each house. Because the 2009-11 budget originated in the Assembly (as AB 75), the bill – as amended by the 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.

Link to the Bar’s Government Relations page throughout the budget process for the latest updates and links.