Member input sought on section amicus request: Feedback due April 16

The Elder Law Section requests authorization to file an amicus brief in Judith Van Handel v. Wisconsin Department of Health and Family Services, currently before the Wisconsin Court of Appeals, District III.

At issue is an appeal of circuit court decision denying Judith Van Handel’s post judgment motion for costs and attorneys fees under Wisconsin Equal Access to Justice Act.  § 814.245 Wis. Stat.  The request for fees arose when Ms. Van Handel was the prevailing party in the substantive portion of this case, which was a petition for review of a final fair hearing decision of the Wisconsin Department of Health and Family Services (DHFS).  § 227.58 Wis. Stat.

The Elder Law Section frequently deals with cases involving public benefits.  In many of these cases, the clients are of limited means.  One way that attorneys can afford to take such cases is that an attorney can request fees and costs under the Wisconsin Equal Access to Justice Act (WEAJA) if he or she prevails in the case and the DHFS’s position was not substantially justified.  It is in the interest of the Section members and the public that this issue is briefed from all perspectives, including the expertise of the Section as a whole, as opposed to the individual litigants involved.  The issue is important for litigants beyond those immediately involved because a reversal by the Court of Appeals could confirm that the government’s entire conduct is to be evaluated when determining substantial justification and it will provide an example to lower courts of how that evaluation should be conducted.  Assuring that the WEAJA is applied properly and consistently by lower courts will encourage more private attorneys to accept the cases of low-income public assistance recipients and will advance the laudable purpose of the WEAJA.

The Executive Committee will consider the request on April 18, 2008. Timely member input on whether the Section amicus should be authorized is invited and will be considered. Please email comments to Sandy Lonergan, Government Relations Coordinator, by April 16, 2008.  Thank you.