The Third Branch
Access to Justice Commission Update
By Judge Margaret J. Vergeront and Atty. Jeff Brown
Judge Margaret J. Vergeront
As part of its mission to develop and encourage means of expanding access to the civil justice system for unrepresented low-income Wisconsin residents, the Wisconsin Access to Justice Commission recently filed a petition to amend the Wisconsin Code of Judicial Conduct to address self-represented litigants and published its report, The State of Equal Justice In Wisconsin.
Petition to Amend SCR 60.04(1)
On Sept. 13, the commission filed Petition 13-14, which seeks to amend SCR 60.04(1) to make clear that "reasonable efforts to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard" are consistent with the obligation of judges to perform all judicial duties fairly and impartially. The proposed amendment would also create a new comment to provide additional guidance to judges.
The current judicial code does not expressly address self-represented litigants. Yet, judges are faced on a regular and increasing basis with difficult decisions in how to fulfill their duty to provide a fair process for all litigants, including self-represented litigants, while fulfilling their duty of impartiality. The proposed rule is intended to make clear that, as long as a judge acts reasonably in attempting to facilitate a litigant's ability to be fairly heard, the judge is not violating those duties.
If the pending petition is adopted, Wisconsin will join the 24 other states and the District of Columbia that, following the 2007 ABA Model Code of Judicial Conduct, have adopted similar provisions. The proposed amendment also largely tracks the language suggested by the 2012 Conferences of Chief Justices and State Court Administrators in a joint resolution urging states to consider amending their judicial codes to address self-represented litigants.
Several organizations of judicial officers have already expressed their support for the petition, including the Committee of Chief Judges, the Executive Committee of the Wisconsin Trial Judges Association, the Wisconsin Family Court Commissioners Association, the Court of Appeals, the Wisconsin Municipal Judges Association and the Wisconsin Association of Judicial Court Commissioners.
The committee drafting the proposed amendment was composed of 10 circuit court judges, three court commissioners, and two Commission members: Circuit Court Judges Carl Ashley, Milwaukee County; Andrew P. Bissonnette, now retired; Karen Christenson, Milwaukee County; Shelley Gaylord, Dane County Circuit Court, Scott W. Horne, La Crosse County; Mary M. Kuhnmuench, Milwaukee County; Michael J. Rosborough, Vernon County; Maryann Sumi, Dane County; Mary Triggiano, Milwaukee County; and Thomas Walsh, Brown County; Court Commissioners Barry Boline, Dolores Bomrad, and Gloria Doyle; and Access to Justice Commission members Marsha Mansfield, Clinical Associate Professor at the UW Law School, and Margaret J. Vergeront, retired Court of Appeals judge.
The State of Equal Justice Report
Based on state-wide hearings held in late 2012, the Commission has released its report with key findings and recommendations on how to improve access to justice for unrepresented, low-income Wisconsin residents. The report draws on testimony from over 137 witnesses who provided testimony at a series of regional public hearings in Green Bay, Eau Claire, Milwaukee, Madison, La Crosse and Wausau. The State of Equal Justice In Wisconsin is the Commission's latest effort to highlight not only the challenges Wisconsin faces but also some of the bright spots that deserve more attention.
The Commission heard testimony from Wisconsin residents who came from varied backgrounds and experiences: judges; court commissioners; members of the public; county clerks; volunteer attorneys; law schools; and representatives of public service, nonprofit, and religious organizations.
In addition, leaders from the judiciary, state and county government, the State Bar of Wisconsin, business, religious groups, foundations, legal aid programs and social services organizations joined Commission members on the panel at each hearing.
Judges and court commissioners testified about the difficult position they find themselves in as impartial decision makers who are regularly faced with one or both parties in a case who don't have lawyers, can't afford a lawyer and are clearly unable to adequately represent themselves or even understand the legal proceedings.
At the Madison hearing, Jefferson County Circuit Court Judge William F. Hue summarized the challenge before us:
"[W]hat do we as custodians in the greatest system of justice in the world want justice to look like to all participants? And once we figure out what justice should look like, assuming that look equates to fairness and equality and I think we can all agree to that. Shouldn't we ensure that the system actually be what we want it to look like?"
Other witnesses described their experiences in trying to find legal help, volunteer efforts to help in their community and the devastating effect of civil legal services funding cutbacks in Wisconsin.
Five fundamental themes emerged from the testimony the Commission heard:
1. The need for civil legal assistance is increasing at a time when resources are decreasing;
2. A continuum of services is needed, from legal information to full representation;
3. The effects on our justice system of the growth in self-represented litigants who often don't understand or can't navigate the court system;
4. Legal aid services for low-income individuals are a cost-effective solution; and
5. Concerted action by a broad range of institutions and individuals inside and (especially) outside the legal system is necessary for any meaningful change to happen.
Based on the public hearings, the Commission makes a series of nine recommendations in its report, including some – such as more funding for civil legal services, increased support for pro bono efforts and an expanded role for non-lawyers – that echo recommendations in the State Bar of Wisconsin's 2007 Bridging the Justice Gap report. The Commission is also recommending an expansion of the legal resource center model to more counties, more appointments of counsel in appropriate civil cases, coordinated public education efforts, a greater role for interpreters outside the courtroom, replicating successful mediation efforts, and additional research on the economic and personal benefits that result from increased access to legal help for low income residents.
Margaret Vergeront is a retired Court of Appeals judge who serves on the Wisconsin Access to Justice Commission; Jeff Brown is the State Bar of Wisconsin's staff support person for the Access to Justice Commission.