Oct. 7, 2009 – Two legislative committees heard testimony Tuesday in favor of two bills to expand financial eligibility for the appointment of a public defender.
The Assembly Committee on Judiciary and Ethics as well as the Senate Judiciary Committee held the joint hearing on Assembly Bill 395 and Senate Bill 263, both of which would expand 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.
Both bills were introduced in August by Representative Gary Sherman (a past president of the State Bar of Wisconsin) and Senator Spencer Coggs.
The proposals face an uncertain future. They are similar to what legislators passed earlier this year in the state budget and which the governor subsequently vetoed in June.
The Board of Governors of the State Bar of Wisconsin has a long-standing position in favor of using federal poverty guidelines as minimum financial criteria for determining indigence and eligibility for constitutionally mandated appointment of counsel, and consistent with that position the State Bar submitted written testimony Tuesday in favor of the bills.
Others to support the bill at the hearing, in addition to the legislative authors, included Chief Justice Shirley Abrahamson, Attorney General J.B. Van Hollen, representatives of State Public Defender Nicholas Chiarkas, Milwaukee County District Attorney John Chisholm and Juneau County District Attorney Scott Southworth.
“Outdated eligibility limits for a public defender are part of a mosaic of issues, all related to chronic under-funding of our justice system and lack of access to justice for those of limited means,” State Bar President Douglas W. Kammer told the committees in written testimony. “While the need for this legislation is great, it is only one solution to one discreet part of a much broader problem.”
Separate legislation to increase the statutory $40 per hour rate for private bar SPD appointments to $70 is also pending in the Assembly Judiciary Committee, which is chaired by Representative Gary Hebl. The committee gave that bill, Assembly Bill 224, a well-attended public hearing in June but has not yet scheduled a vote on the bill, which the State Bar also strongly supports.
“State Public Defender reimbursement rates for private bar appointments, which have been frozen at $40 per hour since 1995, also need to be increased as proposed in AB 224,” Kammer also informed the committees. “Forty dollars per hour is not sufficient to cover the overhead of the average law practice, and that fact makes it difficult to secure experienced attorneys to take these cases at such a low reimbursement rate.”
“The State Bar supports the increased eligibility levels in AB 395 and SB 263 because it is the right thing to do,” Kammer added. “A free society cannot deny justice to the poor and remain free. However, I would be remiss not to acknowledge that this legislation carries an economic cost to our members. Reimbursement rates are a severe problem that the Governor and the Legislature need to address immediately.”
Kammer pointed out that under current law, if a court finds a defendant who does not qualify for a state-paid public defender to be indigent notwithstanding ineligibility for a public defender, the court can appoint counsel at county expense – known as a Dean appointment. Assembly Bill 395 and Senate Bill 263 would greatly reduce, if not eliminate, the number of Dean appointments made at county expense. Dean appointments are generally made at reimbursement rates much higher than the $40 per hour currently paid by the State Public Defender.
The effect of the eligibility bills would be to shift many of what are currently Dean appointments to SPD private bar appointments at a much lower reimbursement rate.
President Kammer also reminded legislators that State Bar members have a long history of providing pro bono legal services to people of limited means, both in the form of free legal services and reduced-cost legal services, such as private bar SPD appointments. According to a 2008 survey, attorneys in Wisconsin annually contribute approximately $12 million in free or reduced-cost legal services to the poor. This figure does not include the approximately $23 million in reduced-cost legal services provided every year by State Bar members to the State of Wisconsin in the form of SPD private bar representation.
Because financial eligibility standards for public defender representation are set by statute and have not been updated since 1987, many of Wisconsin’s poorest citizens are left without access to public defender representation.
State lawmakers have previously introduced bills in the 2003, 2005 and 2007 legislative sessions to update and simplify the eligibility criteria. Despite broad, bipartisan support, none of those bills passed before those sessions ended.
Earlier this year during its deliberations on the state budget, the Joint Finance Committee inserted language into the state budget to expand SPD financial eligibility for public defender representation which was similar to that now contained in AB 395 and SB 263.
However, when Gov. Doyle signed the 2009-11 biennial state budget into law on June 29, he used his line-item veto power to eliminate the Joint Finance eligibility proposal. If not vetoed by Gov. Doyle, the increased eligibility levels would have taken effect at the end of the current biennium, on June 30, 2011.
As part of that now-vetoed plan, the Legislature had approved hiring 32 new SPD staff attorneys and 17 support positions to accommodate the anticipated increase in the State Public Defender’s caseload. Because the changes would not have been effective until the last day of the current biennium, they would have had no fiscal effect on the 2009-11 state biennial budget. However, when fully implemented, the estimated cost associated with this year’s Joint Finance proposal would have been $4.6 million annually. Assembly Bill 395 and Senate Bill 263 are estimated to have similar provisions and costs.
Continue to monitor WisBar.org and visit the State Bar’s Government Relations page for updated legislative information.
Adam Korbitz is the Government Relations Coordinator for the State Bar of Wisconsin.
Related articles:
Lawmakers continue push for increased public defender eligibility limits – September 2, 2009
Governor signs state budget into law – June 29, 2009
Joint Finance expands SPD eligibility, boosts indigent civil legal services – May 27, 2009
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