Bill seeks new standard for SPD eligibility

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Milwaukee Bar Association Executive Director Jim Paetsch watches as Rep. Terri McCormick announces her bill, which would increase eligibility standards for State Public Defender representation, which have remained unchanged since 1987. The new standards would be tied to W-2.

A state representative from Appleton has introduced a bill designed to increase outdated income limits under which people would qualify for assistance from the State Public Defender (SPD) without adding to the state’s budget woes.

In a year when the state is taking a hard look at the budget, Rep. Terri McCormick has developed a proposal that would allow the SPD to help an estimated 13,000 additional people annually without seeking more money from the 2003-05 biennial budget. Instead, the funds would come from counties, which already are paying to provide legal representation to people who cannot afford a lawyer, but who make too much money to meet the current SPD standards for eligibility.

Antiquated Standards

Those standards have remained unchanged since 1987. McCormick’s proposal would tie eligibility to Wisconsin Works (W-2), which is 115 percent of the federal poverty level.

“The 1987 standards were so antiquated that they were based on the Aid to Families with Dependent Children standard which is now defunct,” McCormick said during an interview. “So we were looking at individuals with as little as $2.71 per hour being denied a public defender. That’s just not acceptable.”

Under the bill, that she is proposing, McCormick said the new standard would allow a defendant with a family of four and with an income of about $18,400 to qualify.
Other supporters of the bill have noted that in some cases, people making as little as $2.30 per hour would not qualify for assistance.

Randy Kraft, a spokesperson for the SPD office, indicated that the complexity of the current standards, which take into account income, assets and the charges against the individual, make it difficult to assign a single figure to income. However, he did note that a person could make as little as 40 percent of the federal poverty level and still not qualify for representation by the SPD, depending upon their assets and the charges.

“That’s much lower than minimum wage or a living wage,” Kraft observed.

Justice For All

State Public Defender Nicholas Chia-rkas voiced his support for McCormick’s proposal during a press conference announcing the bill last week.

“Our ‘Pledge of Allegiance’ promises in its last three words ‘justice for all,’ ” Chiarkas said. “To ensure fairness, those citizens too poor to afford an attorney must be provided an attorney by the government.

“Martin Luther King said, ‘Injustice anywhere is a threat to justice everywhere.’ Rep. McCormick’s bill will ensure that every day in Wisconsin, State Public Defenders will represent our poorest citizens and by doing so they protect justice for all our citizens.”

The State Bar of Wisconsin and Milwaukee Bar Association have come out in support of the proposal. Represen-tatives from each group were present for McCormick’s announcement in Madison on June 16.

Brilliant Idea

In an interview with the Wisconsin Law Journal, Gerald W. Mowris, State Bar past-president, said, “It’s a brilliant idea. I wish I had thought of it. I wish somebody would have thought of it sooner.”

Mowris said the State Bar plans to lobby in support of McCormick’s proposal. “We’ve had a longstanding policy supporting increasing the Public Defender eligibility standards,” he explained.

Jim Paetsch, executive director of the Milwaukee Bar Association, expressed his group’s support for the proposal, as well. The MBA’s board of directors passed a resolution calling for the state Legislature to revise the standards for eligibility.

“We get real concerned about this — you have a whole group of people who are poor, but they are not quite poor enough,” Paetsch said. “They clearly cannot afford a lawyer, but the court won’t appoint one. Wha
t ends up happening is they try to represent themselves and that is just disastrous. The system is complex and they just don’t know what they are doing.”

Uniform Approach

Both Mowris and Paetsch noted the problems faced by poor defendants who do not qualify for SPD representation. They can ask the court to appoint counsel, but that discretionary approach leads to inconsistencies between counties and between judges.

“Doing it through the Public Defender assures uniformity statewide,” Mowris said. “It assures that they will have trained, competent counsel in most cases, because of their requirements in order to be certified either to work for the Public Defender or to take Public Defender appointments.”

“In the long run it saves money.” Looking at what counties around the state pay to appoint counsel, Mowris said, “In 2001, the cost for the counties was $5.5 million.”
McCormick explained that her bill would take the task of appointing counsel out of the counties’ hands and it would centralize the handling of cases through the SPD.

Since the new standard would result in a cost savings for counties, the proposal would seek funding from those counties, which would benefit from not having to appoint and pay for counsel.

On average, the counties are currently paying about $70 per hour for court-appointed counsel. Under the bill, counties would reimburse the SPD, which has a $40-per-hour fee for the lawyers it appoints, creating the potential for significant savings to the counties, while covering the SPD’s costs.

“Right now, you’ll find many counties appointing (lawyers for) many of these people at higher levels than what it costs us to represent,” Kraft noted.

The SPD also has a mechanism for seeking some level of payment from clients.

At this point, McCormick said she is looking for cosponsors and for someone to bring a similar bill in the state Senate. However, she is optimistic about the bill’s chances.

“It isn’t calling for more state resources,” she said. “It is calling for more effective use of expertise in the State Public Defender’s office. By the way, I have the utmost respect for Nick Chiarkas and his staff.”

Tony Anderson can be reached by email.