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Access to Justice Commission may propose rule change

The Wisconsin Access to Justice Commission is looking into proposing a change to the rules of civil procedure that would channel more money to civil legal services.

Jim Gramling, the commission’s president, presented a draft of the proposal at the State Bar’s Board of Governors’ April meeting.
The Wisconsin Access to Justice Commission is a 17-person body that develops and encourages expanding access to the civil justice system to unrepresented, low-income Wisconsin residents.

The commission’s proposal would amend Wis. Stat. 803.08, which is the rule of civil procedure that governs state class action lawsuits, to require that 50 percent of the residual settlements pay for civil legal services. The Wisconsin Trust Account Foundation would distribute the money to civil legal aid organizations across the state, said Gramling.

Under the cy pres doctrine, judges can award residual money from class-action lawsuits to organizations that would serve the interest of class members, including access to justice programs.

Gramling said it isn’t yet known how much money the proposed rule would bring in because there are no records or accounting of amounts that are distributed out of class-action lawsuits.

“On the optimistic side,” he said, “we’re hoping it’s hundreds of thousands of dollars a year.”

If the rule gets approval from the board at its June 24 meeting, Gramling said the commission will, in the late summer or early fall, petition the Wisconsin Supreme Court to adopt it. State Supreme Court justices would have to discuss the rule and hold a public hearing.

Feedback so far, Gramling said, has been supportive.

The draft was sent out to 10 to 12 groups around the state that would be interested in the outcome of a petition for the change. He said he has heard back from six to eight of those groups.

“There seems to be consensus that this is a good idea; that taking the funds makes good sense and would be good policy,” he said.

One of the organizations the commission contacted for feedback was the Eastern District Bar Association.

“We hope the federal courts will be influenced by the state rule,” said Gramling, “assuming we get it passed.”

The draft of the proposed rule was first discussed and approved at the commission’s quarterly meeting in December. A number of states, Gramling said, have considered a similar change, and a small number have already succeeded in adopting a similar rule. He said word has spread among ATJ commissions in other states that such a rule could help bring in more money for access to justice.

The drafting of the petition coincides with the Judicial Council’s Committee on Evidence and Civil Procedure’s lengthy project to update the Wisconsin class-action statutes to align with federal class-action statutes. So far, the committee has gotten through four sections of the federal law.

April Southwick, staff attorney for the Judicial Council, said Friday the ATJ’s proposed rule would only alter a small part of the state’s class-action statutes. The council’s focus is on reviewing the several pages of federal class-actions statutes and deciding what parts to adopt, so the proposal had little effect on the council’s work, she said. If the Supreme Court adopts the ATJ’s rule, the council would incorporate it into whatever changes they make.

Meanwhile, Gramling said the commission continues to search for alternate ways to finance its operations.

Since it was created in 2009, the ATJ commission has been paid for through a $300,000 State Bar reserve, which was supposed to last three years. The commission has made it last nearly twice as long because expenses have been lower, Gramling has said.

However, that money is set to run out in July.

The money from the recently increased pro hac vice fee will help fill that void. On July 1, the state Supreme Court increased the fee from $50 to $250 per application, with $50 from each application going to the commission. Pro hac vice fees are what out-of-state attorneys pay to handle cases in Wisconsin.

However, Gramling said money from the increased fees looks like it will bring in a little less than $30,000 a year, less than the projected $40,000. But they won’t really know until July exactly what that amount will be, he said.

Gramling said he is optimistic that the State Bar will continue to provide the staffing the commission needs for another year. He also said that there is a possibility that the Supreme Court might fund the commission from its budget.

“We’re waiting to see how the court chooses to allocate its budget once they start looking into the block grant,” he said. “We have made it clear to the court that we would appreciate some funding to some extent.”

About Erika Strebel, [email protected]

Erika Strebel is the law beat reporter for the Wisconsin Law Journal and a law school student at UW-Madison. She can be reached at 414-225-1825.

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