Equal justice for all is something that we treasure and that every Wisconsin resident deserves. We hope that you find this short video helpful and inspiring. There is a role for everyone in the effort to make access to justice a higher priority at the local, state and national levels. Contact us to find out how you can help right here in Wisconsin.
Spring meeting with the Wisconsin Supreme Court
On Monday, March 12, the Access to Justice Commission had the pleasure of meeting with the justices of the Wisconsin Supreme Court. The Commission holds a joint meeting with the court each Spring in conjunction with the Commision’s annual meeting in Madison. The discussion covered a range of access to justice issues and projects in Wisconsin and nationally. The following Commission projects were covered and the Commission is grateful for all the helpful suggestions for additional resources and approaches that were provided:
- In state courts - A growing concern expressed by many trial court judges has been that the growth of self representation in the courts makes it challenging for judges to both maintain their traditional impartial role in the courtroom and ensure that the proceeding is fair. Our adversarial system of justice has grown around an assumption that both parties would be represented by attorneys who understand the rules and the law. The Commission has examined a number of possible possible updates to the Code of Judicial Conduct and other resources that would provide more assistance to judges on best practices for handling self-represented litigants in the courtroom. Additional guidance in for form of a revised rule, additional commentary in the rules, expanded judicial guidebooks and more training are likely recommendations.
- In tribal courts – The rate of people who are not represented by attorneys appears to be significantly higher in tribal courts but there is also a tradition of using non-lawyer tribal court advocates in those courts to assist litigants. Based on the findings from an informal survey of tribal court judges, the Commission is working with Wisconsin Judicare’s Indian Law Office on a proposal to the Wisconsin technical colleges that could lead to the development of enhanced training for tribal court advocates who play such a vital role in those courts.
- Mapping the system – Because the Commission is charged with taking a systemic view of equal access to justice for low income Wisconsin residents, a detailed mapping of civil legal needs and the resources available to meet those needs is also underway. The ultimate goal is to paint a more detailed picture of the state of access to justice in Wisconsin by integrating data from a variety of sources, including the Census, state and local government, bar associations, the courts as well as legal and social services providers. The information would be useful for planning purposes to providers, courts and funding organizations.
- Resource development – Increasing funding for the provision of civil legal services to Wisconsin residents who cannot afford legal assistance necessary to address important civil legal needs is a major priority for the Commission. In addition to seeking the restoration of public funding for civil legal services to the indigent, the Commission is also moving forward on developing supplemental funding options such as cy pres (the use of residual amounts left over in class action settlements to fund legal services), increasing the private fundraising capacity of legal services providers and pursuing innovative resources such as Americorps.
- Appointment of counsel – In response to concerns that have been expressed about the cost and scope of a proposed rule on the appointment of counsel in certain civil cases, the Commission is exploring the feasibility of an affordable but meaningful pilot program that could provide at least some of that missing information for the courts and policymakers. No decisions have been made on whether to proceed with such a project but the initial planning involves Commission members along with representatives from the court system and the Wisconsin Counties Association. Helpful assistance has been provided by the ABA Section of Litigation’s Civil Right to Counsel Fellow, John Polluck.
- Outreach – In the area of public outreach, the Commission has developed a compelling video and brochure as tools that will be used to highlight both the importance of providing equal access to justice for all and the difference that everyone can make in this effort.
Following the meeting with the justices, the Access to Justice Commission held also met and decided to move forward with hosting a series of regional hearings on the state of equal access to civil justice in Wisconsin. More information about the hearings will be provided as it becomes available.
Final order on civil right to counsel petition
The Wisconsin Supreme Court has released its final order denying Petition 10-08. The justices voted last month to deny to petition. Petition supporters asked for a new rule that would have required circuit court judges to appoint counsel at public expense for indigent litigants in many civil cases where basic human needs were at stake.
Citing uncertainty about the scope and cost of the proposal, the court declined to adopt the proposed rule. The justices also noted the continuing validity of their previous decisions on the inherent power of Wisconsin courts to appoint counsel in some cases:
The petition relies on the inherent power of circuit courts to appoint counsel for indigent persons. The court has set forth the inherent power of circuit courts to appoint counsel for indigent persons in civil cases in Piper v. Popp, 167 Wis. 2d 633, 658, 482 N.W.2d 353 (1992), and Joni B. v. State, 202 Wis. 2d 1, 549 N.W.2d 411 (1996). Our decision regarding this petition does not undermine the holdings of these cases.
We decline to grant the petition and supplemental petition, which do not fit within SCR 11.02. The parameters of the proposal are difficult to discern and the effect of the proposal on circuit courts and counties is largely unknown but may be substantial.
Prior to denying the petition, the court discussed the possiblitty of a various types of pilot projects that might provide more information on the costs and benefits of appointing counsel in some civil cases. The Access to Justice Commission responded that it was willing to investigate such a program or study. Therefore, the final order also includes this reference to the Commission’s efforts:
The Wisconsin Access to Justice Commission has advised the court of its commitment to developing an Appointment of Counsel Pilot Project for indigents in one or more selected categories of civil cases involving basic human needs. Because a Pilot Project would necessitate circuit court participation, John Voelker, Director of State Courts, is already working with the Commission on the Pilot Project and his office will continue to assist the Commission on the Pilot Project to the extent the Director deems practicable. The court asks the Commission to keep this court apprised of the progress of the Pilot Project, including any budget that may be developed and the timetable and scope of its implementation. The court recognizes that data compiled from the Pilot Project may assist the court in developing a future biennial budget request to provide additional state funding to assist in funding the appointment of counsel for indigents as required by law. The court also urges the Commission to consider consulting with and facilitating the participation of representatives of the Wisconsin Counties Association, County government and circuit court clerks.
A number of states are exploring civil right to counsel pilot projects, some using public funds and others using private funds. The most advanced and well funded program is in California. There, the Legislature adopted and the Governor signed AB 590 to provide approximately $9.5 million per year for three years to fund a series of pilot programs that are overssen by the Administrative Office of the Courts. A recent news report suggests that San Francisco County’s Board of Supervisors, led by Supervisor Chiu (pdf), may soon adopt its own local initiative to fund legal counsel for the indigent in some civil cases.
Without public funding, any project in Wisconsin is likely to be much more limited. A working group of Commission members and other interested groups is reviewing a range of design and evaluation issues. Individuals who would like to assist the working group with this project should contact us.
Supreme Court denies “Civil Gideon” petition
Today, the Wisconsin Supreme Court voted unanimously to deny Petition 10-08. The petitioners were requesting a new court rule that would have required circuit court judges to appoint attorneys at public expense for low income litigants in certain types of civil court cases:
(2) Appearance by attorney. PROVIDED. Where a civil litigant is indigent (defined as below 200% of the federal poverty guidelines), the court shall provide counsel at public expense where the assistance of counsel is needed to protect the litigant’s rights to basic human needs, including sustenance, shelter, clothing, heat, medical care, safety and child custody and placement. In making the determination as to whether the assistance of counsel is needed, the court may consider the personal characteristics of the litigant, such as age, mental capacity, education and knowledge of the law and of legal proceedings, and the complexity of the case.
The draft order denying the petition is here (pdf) and the final order should be posted here once several changes from the open administrative conference are incorporated. Video of the administrative conference is available on Wisconsin Eye (discussion of Petition 10-08 begins at the 1:19 mark).
Consideration of this issue now shifts to the Access to Justice Commission. As reflected in the Commission’s recent letter to the Supreme Court, a working group has been formed to examine potential pilot projects that could be developed to evaluate the costs and benefits of providing legal counsel for low income litigants in certain types of civil legal matters. The working group held an initial meeting to discuss the project and is scheduled to meet again on January 30 at 1 pm (contact us for more information about the working group).
Commission appoints work group for Wisconsin civil right to counsel project
The Wisconsin Access to Justice Commission has appointed a special working group to develop a formal proposal for a study that would evaluate the costs and benefits of providing counsel to low income individuals in some civil legal matters where basic human needs are at stake. Initial members of the working group are Commission members Gregg Moore, Don Friske, John Ebbott, Deedee Rongstad and Judge Margaret Vergeront as well as the Director of State Courts, John Voelker.
Formation of the working group was prompted by recent developments in the Wisconsin Supreme Court’s consideration of the “Civil Gideon” petition seeking a new court rule that would require counties to pay for appointments of lawyers for indigent people in certain cases where basic human needs are at stake. The Wisconsin petition is part of a national Civil Gideon effort.
At the Wisconsin Supreme Court’s most recent conference on the civil right to counsel petition, it appeared likely that a majority of the justices were prepared to deny the petition, primarily due to its financial impact on county governments that would have to pay for the appointed lawyers. However, the justices appeared to be leaning towards an order that would also suggest that the Access to Justice Commission to seek funding from the State Bar of Wisconsin’s access to justice reserve fund and others to study the value of appointing counsel in certain civil cases. The scope and design of the study would be left to the Commission. A number of justices have also inquired about the Commission’s willingness to undertake such a project.
After agreeing that it woud respond favorably to such a request from the court, the Commission discussed possible approaches to developing an appropriate study including project goals, funding and evaluation. The working group will be responsible for gathering suggestions and developing the details of a proposed study for the Commission’s consideration.
Wisconsin would not be the first state to undertake a study on this subject. Pilot programs are underway or have been conducted in other states to evaluate particular costs and benefits of appointing counsel for indigent litigants in certain types of civil cases. The largest effort is a new series of pilot projects funded under California’s Sargeant Shriver Act.
The Wisconsin Supreme Court is expected to discuss a draft order on the civil right to counsel petition at an open administrative conference on January 19 at 9:30 am CT (it will also be available live on Wisconsin Eye).
Congress votes to widen the justice gap: 2012 LSC funding cut
From the National Legal Aid & Defender Association:
Last night House and Senate conferees agreed to a spending package that would fund the Legal Services Corporation (LSC) at $348,000,000 for FY 2012. This figure represents a reduction in overall funding for LSC of $56,190,000, or 13.9 percent. The entire cut comes from funding for basic field programs, amounting to 14.8 percent of the critical funding used by LSC grantees to provide access to justice in the United States. The figure represents a split in half of the difference between the level the Senate appropriated for FY 2012 of $396.1 million and the House level of $300 million.
It appears that, despite a heavy educational campaign by supporters of legal services aimed at conservative members in the House, the pressure on House Republican conferees resulting from the earlier deep cuts in the House appropriations bill led to their insistence upon this level of cut before they would agree to a final overall spending deal funding the Commerce, Justice and Science functions of government. Despite the expressed strong support of conferees Barbara Mikulski and Kay Bailey Hutchison in the Senate, and Chaka Fattah in the House, the intransigence of House leadership on this issue led to the unfortunate compromise resolution.
The package is expected to pass the House and Senate this week. The Conference Report containing the agreements is not open to amendment on either the House or Senate floor. Thus, the LSC figure contained with the Report is likely to be the final spending figure for FY 2012.
What does this mean for Wisconsin? The short answer is that Wisconsin is likely to lose over $700,000 in federal funding that would have helped thousands of vulnerable Wisconsin residents to resolve their legal issues affecting basic human needs for shelter, safety, food and employment. Life is is about to become a little bit tougher for the poor, the elderly, the disabled and others facing unlawful evictions, lending abuses, domestic violence or barriers to employment.
Wisconsin Supreme Court takes no action on civil right to counsel petition
The Wisconsin Supreme Court held an open administrative conference on Monday, October 17, to discuss how it should respond to Petition 10-08 following the all-day hearing on the petition was held on October 4. The petition seeks creation of a new court rule that would lead to the appointment of counsel in many more civil cases in Wisconsin. At the administrative conference there was not a majority of justices who supported moving forward on the proposal as set out in the petition. However, only two justices indicated that they would deny the petition outright.
Commission testifies in support of a civil right to counsel
Prof. Marsha Mansfield outside the courtroom (background, Legal Action's John Ebbott and retired Justice Earl Johnson, Jr.)
At Tuesday’s hearing in the Wisconsin Supreme Court, the Access to Justice Commission reiterated its support for a new rule that would lead more Circuit Court judges to appoint attorneys for indigent Wisconsin residents in certain civil court cases. During an all-day session to hear arguments for and against the petition, the justices heard from over 20 witnesses, including judges, court commissioners, attorneys, county governments, clerks of court and members of the public. The entire proceeding was shown live on Wisconsin Eye and is now available in their video archive.
Professor Marsha Mansfield spoke on behalf of the Commission, assuring the justices that “we want to be creative and engaged in a process to make this a reality.” As Professor Mansfield noted, this is an issue of fundamental fairness in our legal system, because there are “people who really do need the help of a lawyer in order to successfully present their case: not win or lose but just to be a able to fully develop the facts or law necessary to have a full decision rendered.”
News coverage of the proceeding can be found in the Milwaukee Journal Sentinel, Wisconsin Public Radio and on the State Bar of Wisconsin website. The AP story was also picked up by many other news outlets around the state.
The next step is an open administrative conference at the Supreme Court on October 17 where the justices will discuss whether to grant or deny the petition in whole or in part. The Access the Justice Commission, the State Bar and many others have offered to work with the Supreme Court on the important issues raised at the hearing.
Congress prepares to cut LSC funding (again)
Seniors are among those affected
In the midst of the greatest economic meltdown in a generation, Congress is poised to cut 2012 funding for the federal Legal Services Corporation (LSC), the largest single funding source for civil legal services to the poor. LSC funds a national network of nonprofit law offices who leverage their staff and volunteers along with other funds to provide free civil legal services to low income individuals. The Senate recommendation of a 2% cut to LSC’s appropriation is more moderate than the extreme 26% reduction proposed in the House but neither would provide what LSC needs to accomplish its mission. [More on what you can do below]
LSC grantees provided vitally important services to low-income Americans in almost 1 million cases last year. Legal Action of Wisconsin and Wisconsin Judicare, our two LSC grantees in Wisconsin, handled over 9,900 cases using LSC funding last year. Still, the data shows what a history of underfunding LSC means for those who desperately need legal help: legal services offices must consistently turn away one eligible potential client for every one that they are able to serve. Nationwide, that adds up at least 1 million of people who go unserved and millions more in the same household who are also adversely affected.
Wisconsin would suffer more than most from a cut in LSC funding. It would compound the devastating impact of the Wisconsin Legislature’s total elimination of state funding for civil legal services to the poor in Wisconsin.
Commission releases annual report
The 2011 Annual Report for the Wisconsin Access to Justice Commission is now available.