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.

In conference, the justices held a wide ranging discussion about: (1) whether the right(s) implicated by the request were constitutional, a matter of policy or both; (2) the significance and scope of the court’s Joni B decision on appointment of counsel in CHIPS cases; (3) the possible burden on the court system of handling requests for appointment of counsel; and (4) how to pay for a program of court appointed counsel that could cost Wisconsin counties at least $56 million. It was the latter issue, the likely cost to the counties, that loomed largest in the discussion.

A number of possible responses to the petition were offered, including:  granting the petition but delaying implementation while the funding question is sorted out (by Justice Crooks); paying for a limited pilot program out of the court’s budget (by Justice Roggensack); and revising various publications used by judges such as judicial benchbooks to provide guidance on the inherent authority of circuit courts to appoint counsel in certain cases (Justice Ziegler). However, none of the suggested approaches attracted sufficient support from the other justices to move forward.

The Chief Justice followed up on suggestions from Justices Ziegler and Crooks, asking the court’s Judicial Education Committee to consider whether additional education programming is warranted on the power that judges already have under the Joni B. decision.

Justice Prosser volunteered to prepare a memorandum for the other justices on alternative steps that the court could take to address the unmet legal needs of low-income Wisconsinites short of adopting the petition. He suggested that the court explore avenues such as  modifying the rules on what court staff can do to help unrepresented litigants, increasing pro bono in law schools and by lawyers, use of paralegals, and approaching the legislature about restoring funding for civil legal services,

Discussion of the petition in the court’s conference ended with Chief Justice Abrahamson’s request that Commissioner Julie Rich prepare a draft rule incorporating some elements from Petition 10-08 that the Chief Justice could present for the court’s future consideration.

Video and audio of the court’s discussion is available at Wisconsin Eye.

Video and audio of the hearing on the petition is also available.

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