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Judges, justices seek more guidance in civil appointment proposal

By: Jack Zemlicka, [email protected]//October 18, 2011//

Judges, justices seek more guidance in civil appointment proposal

By: Jack Zemlicka, [email protected]//October 18, 2011//

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As cost concerns loom over a proposal to expand civil appointments in state, members of the judiciary this week also began to question how such appointments would be divvied up without a plan for how to assign cases.

For criminal case appointments, the majority of cases go through the State Public Defender’s office, which has a system in place for assigning cases. But without a similar system for civil appointments, judges will need more guidance on how to assign cases, said Judge Bill Pocan, who serves in Milwaukee County’s Civil Division.

“I’d hate to be in a situation where I’d have to blindly guess or appoint attorneys,” he said. “I don’t want someone to think I’m playing favorites.”

Pocan suggested using the model already in place at Milwaukee County Children’s Court, where a roster of attorneys is used for guardian ad litem and children in need of protective services appointments at a cost of $60 per hour.

“I would hope they might look at something similar,” he said, “and not try to reinvent the wheel.”

Judges already have the ability to make appointments in civil cases, as reinforced in Joni B. v. State, 202 Wis.2d 1, 549 N.W.2d 411 (1996), but outside of those that involve child protection, few do.

Part of the reason for that, Pocan said, is the lack of an efficient structure, in addition to cost concerns.

Both problems continue to dominate discussions of petitioner John Ebbott’s proposal, which calls for attorney appointments in civil cases that involve protection of a poor person’s “rights to basic human needs, including sustenance, shelter, clothing, heat, medical care, safety and child custody and placement.”

During consideration of the proposal Monday, the state’s Supreme Court justices couldn’t come to an agreement to adopt or deny the petition that would require judges to appoint attorneys for qualified indigent litigants in cases concerning issues such as domestic violence or evictions. Cases that would be excluded from appointments include personal injury, free speech and privacy actions.

Initial estimates put the collective costs to counties at $56 million per year, including $11 million in Milwaukee County.

“I have no idea how we would implement it,” said Jeff Kremers, Milwaukee County Circuit chief judge, “or how the county would pay for it.”

According to the petition, to qualify for a civil appointment, a litigant would have to have an income below 200 percent of the federal poverty guidelines, but the court can take into account the complexity of the case and the litigant’s personal characteristics, such as age, mental capacity, education and knowledge of the law.

Justice Patience Roggensack said she favors trying a pilot program for a specific case type, to determine how often appointments are made and under what circumstances.

One of the challenges judges could face if the court mandated appointments, she said, is how to interpret the rule on a broad scale.

Given the broadness of the proposal, Justice N. Patrick Crooks said, he wants to make sure judges retain their discretion when deciding to make appointments.

But the consequences of failing to appoint counsel when required, Roggensack said, could result in a lawsuit.

“It will be enforced by litigation,” she said. “If someone believes they had a right to counsel, they would appeal that court decision and there would have to be a hearing on whether the person, as part of Civil Gideon, fell within the parameters set forth in the petition.”

Attorney Tom Cannon, executive director of the Legal Aid Society of Milwaukee, acknowledged that if the appointments are mandatory, interpretation by judges will vary throughout the state.

In his experience in Children’s Court, Pocan said, not every case warranted an appointment. If the rule were expanded, he said, he expected judges would gradually develop their own standards of when to appoint counsel, within the parameters of the rule.

Until the court takes action, Kremers said, it is hard to plan accordingly. But if the court expands civil appointments, judges will abide by the rule, he said.

“If judges are required to appoint counsel, we will figure out how to do it,” he said. “But it would depend on what types of cases are covered and how the compensation structure would work.”

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