While the state Supreme Court considers a proposal to broaden the appointment of counsel in civil cases, Wisconsin and its counties are playing hot potato with who will pay for the plan if it gains approval.
Petitioner John Ebbott, executive director of Legal Action of Wisconsin, estimates his proposal, which went before the state Supreme Court on Tuesday, could cost about $56 million a year.
Ideally, Ebbott said, the state will foot the bill for his plan, which calls for attorney appointments in 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.”
The U.S. Constitution mandates legal representation in criminal cases, but there currently is no such provision for civil litigation.
In his proposal, Ebbott highlights the Court Support Services Surcharge as an ideal way to pay for the appointments. As recently as 2007-08, he stated in his proposal, the surcharge generated more than $50 million for the state.
Ebbott claims less than half of that money was reinvested into court operations, as intended. The remainder of the money was allocated to other state projects, he said.
“That money should be allocated for what is was meant for,” Ebbott said.
Cullen Werwie, spokesperson for Gov. Scott Walker, said it is premature to consider financial backing for the proposal until it moves forward.
“If a change is made that has the potential to affect the state,” he said, “we will evaluate that during future budget deliberations.”
Absent state aid, the financial burden could fall on individual counties.
In Milwaukee, that could mean as much as $11 million annually, according to an estimate from the Milwaukee County Board of Supervisors. Last week, the board voted unanimously to support the concept of civil appointments, but only if the state pays for them.
County Supervisor Gerry Broderick said if the petition is adopted by the court and the state doesn’t pay for the plan, counties will have to prioritize spending to cover the costs.
“Roads are terribly important,” he said, “but equitable access to justice seems be one of the very top, if not the top, priority.”
Milwaukee County is facing a $55 million deficit heading into the current budget season and Broderick said he would prefer to not have to try to find room for another $11 million in future years. For that reason, he said, the county would have to consider all options to pay for the plan. That could include cuts to county court budgets, an option that was informally discussed at Tuesday’s public hearing before the court.
“The money is simply not there,” said David Callender, legislative associate for the Wisconsin Counties Association. “If there has to be an appropriation it would come from other services and in all likelihood from other court services.”
Callender did not elaborate on specific cuts, but said the association formally opposed the petition based on economics.
Walker provided some relief to the Misdemeanor Division on Friday when he appointed Godfrey & Kahn SC attorney Nelson Phillips to Branch 17. It was not immediately known when he will start, but Phillips will first have to attend judicial training before taking the bench.
During the open hearing, Justice Annette Ziegler asked how much courts could afford to give up for the appointments to be worthwhile for the system.
“What can counties eliminate in the budget to create this funding source?” Ziegler said. “What are we willing to give up? Court commissioners?”
Milwaukee County Court Commissioner Laura Gramling Perez said that is not an option.
Appointment of counsel in small claims, foreclosure or family cases, Perez said, wouldn’t off set work done by the county’s 21 other court commissioners.
“In cases where I see both sides represented, which is the minority,” Perez said, “I wouldn’t say those cases are handled any more quickly or require any less court commissioner time than cases where one or both parties are pro se.”
To qualify for an appointment under Ebbott’s proposal, a litigant would have to have an income below 200 percent of the federal poverty guidelines. Courts can take into account the complexity of the case, however, and the litigant’s personal characteristics, such as age, mental capacity, education and knowledge of the law.
Milwaukee processed more than 45,000 small claims cases last year, Perez said, the vast majority of which involved pro se litigants.
But even if many of those cases received appointed counsel at the county rate of $60 per hour, judges would have to decide at the outset which cases would warrant an appointment.
In his proposal, Ebbott did not specify the types of civil cases in which counsel would be appointed, stating only that personal injury, free speech and privacy actions are excluded.
“If you appoint attorneys for a large enough swath of those,” Perez said, “that would be an added piece of work for the judge or whoever would be making that decision.”
Currently, commissioners generally make the decision to appoint counsel in criminal court and in child neglect cases.
“They take the brunt of the cases at the outset,” Milwaukee County Circuit Court Judge Mary Triggiano said. “I don’t want to lose court commissioners.”
Triggiano, who serves in the domestic violence and misdemeanor court, suggested an alternative financial option could be a payback system like one used currently in the Criminal Division.
Triggiano said when she makes appointments for counsel, she often requires that litigants pay $40 per month to help the county recoup the cost of the appointment.
If the state does not pay for his plan, Ebbott said, he wants counties to look outside of court budgets to pay for the proposal. He said he does not believe counties are too strapped for cash to find money for the poor.
“Counties were not too strapped to build Miller Park or renovate Lambeau Field,” he said. “But when it comes to helping poor people, there just isn’t any money?”