Supreme Court of
In the matter of the petition to amend Supreme Court Rule 81.02.
JUL 6, 2011
A. John Voelker
Acting Clerk of Supreme Court
This petition asks the court to amend Supreme Court Rule (SCR) 81.02 by increasing the hourly rate of compensation for court-appointed lawyers from $70 to $80, indexing that rate to the Consumer Price Index, and specifying that the payment of an hourly rate less than the rate set forth in SCR 81.02(1) for legal services rendered pursuant to appointment by the State Public Defender under Wis. Stat. § 977.08 is unreasonable. The petitioners provided the court with documentation in support of the petition, including: ABA, Gideon's Broken Promise: America's Continuing Quest for Equal Justice, (December 2004); ABA, Findings Concerning Contracting for the Delivery of Indigent Defense Services, (July 1995); and The Spangenberg Group, Rates of Compensation Paid to Court-Appointed Counsel in Non-Capital Felony Cases at Trial: A State-By-State Overview, (June 2007). The petitioners submitted a supplemental filing on September 29, 2010, responding to certain written questions from the court. Written comments from interested parties were also received.
On November 9, 2010, the court conducted a public hearing on this petition. Attorney John Skilton presented the petition and a number of individuals spoke regarding the petition. The testimony presented to the court was often eloquent and very informative. At the ensuing open administration conference the court discussed the matter at length.
This petition requires an understanding of the sometimes complicated interplay of statutes and rules that govern which defendants are sufficiently indigent to qualify for representation, who represents these indigent criminal defendants, how these lawyers are compensated for their services, and who pays the bills.
It is a fundamental cornerstone of our justice system
that indigent criminal defendants are
constitutionally entitled to effective assistance of counsel. Gideon v. Wainwright, 372
That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.
The Wisconsin State Public Defender's Office (SPD) provides legal representation to qualified defendants in cases specified by state law. Applicants for public defender representation are required by state law to meet strict financial guidelines to qualify for appointment of an attorney by the SPD.
However, SPD staff attorneys cannot represent all the people who are entitled to representation. The law provides that if the SPD has a conflict of interest or is otherwise unable to represent an eligible indigent defendant, the SPD will appoint and pay for a private attorney to provide representation. See Wis. Stat. §§ 977.05(4)(i), (j), (jm); 977.05(5)(a); 977.07; 977.08. Because of the budget constraints imposed on the SPD, private attorneys currently handle approximately 40%-45% of all indigent representations.
These appointed lawyers are paid $40 per hour. See
By comparison, during the same time span the rate of compensation for attorneys serving in the federal system has doubled from $65 (1995) to $125 (2010).
The petitioners assert that the low hourly rates have increasingly caused qualified and/or experienced lawyers to decline SPD appointments. For many lawyers, their basic office overhead costs (such as malpractice insurance, rent, staffing costs, work-related travel, law school loan payments) exceed the compensation rate that is paid by the SPD. In short, they lose money if they agree to represent these criminal defendants. SPD appointed lawyers may feel pressure to resolve cases early with a plea because they cannot afford the time to prepare for a trial even if their client wants one. SPD attorneys are managing increasingly heavy caseloads which affects the amount of time they can spend on each case.
If lawyers are unavailable or unwilling to represent
indigent clients at the SPD rate of $40 per hour, or when clients do not
qualify under existing SPD eligibility standards but nonetheless are unable
financially to retain counsel, judges then must appoint lawyers at county
These court-appointed lawyers are compensated at a rate that is established by the supreme court in SCR 81.02. Since 1994 SCR 81.02 has set compensation for court-appointed lawyers at $70 per hour. Counties are thus required to reimburse court-appointed counsel at the $70 per hour rate.
This admittedly simplified background brings us to the petition pending before this court. The petition asks the court to raise the rate for court-appointed attorneys from $70 per hour to $80 per hour, adopt a provision tying the compensation rate to the Consumer Price Index, and, perhaps most significantly, adopt a newly created SCR 81.02(3), which would state the "payment of an hourly rate less than the rate set forth in Supreme Court Rule 81.02(1) for legal services rendered pursuant to appointment by the State Public Defender under Wisconsin Statutes section 977.08 is unreasonable."
Adopting proposed 81.02(3) would constitute a challenge
to the compensation rate set by the legislature in
Each biennium since , the Wisconsin State Public Defender Board has requested a private bar rate increase. We have made every argument for the rate increase that our collective intelligence and experience could generate. The agency's budget request has never been included in the Governor's budget bill.
A threshold question for this court is whether this court has the authority to effectively declare a legislative mandate "unreasonable." The petitioners urge that we do. The petitioners state:
This Court has inherent power to ensure the effective
administration of justice in the State of
We agree that this is an area of shared authority for the court and the legislature, but we decline at this time to use our administrative regulatory process to effectively circumvent a legislative enactment.
However, we express sincere concern because we
recognize that indigent criminal
defense programs in
This funding crisis is not
Yet we also recognize and acknowledge that this is a particularly challenging budgetary environment. Legislators are required to make difficult funding decisions with inadequate resources while striving to support many worthy programs. Several counties have advised us that they oppose this petition because they simply cannot afford it.
However, our criminal justice system is reaching a breaking point. The resources available for the defense of poor people accused of crime has fallen alarmingly, potentially compromising our constitutional responsibility to ensure that every defendant stands equal before the law and is afforded the right to a fair trial guaranteed by our constitution. If this funding crisis is not addressed we risk a constitutional crisis that could compromise the integrity of our justice system.
IT IS ORDERED that the petition is denied.
Justice David T. Prosser concurs in the result.
Dated at Madison, Wisconsin, this 6th day of July, 2011.
BY THE COURT:
A. John Voelker
Acting Clerk of Supreme Court
 This rule petition was filed on March 5, 2010, by Attorneys Dean A. Strang, John S. Skilton, and Timothy W. Burns on behalf of Patricia K. Ballman, Thomas J. Basting, Sr., Richard T. Becker, Michelle A. Behnke, Gregory B. Conway, Robert H. Friebert, Janine P. Geske, Franklyn M. Gimbel, Ralph Johnson, E. Michael McCann, Gerald M. O'Brien, Jose A. Olivieri, and G. Lane Ware, all members in good standing of the State Bar of Wisconsin.
 All of these documents are available on the court's Web site at: www.wicourts.gov/scrules.
 Initially, this matter was scheduled for public hearing on October 19, 2010. Immediately prior to the start of the public hearing on October 19, 2010, the State Capitol building was evacuated by Capitol Police for a period of several hours. As a result the administrative conference was cancelled. The matter was rescheduled and conducted on November 9, 2010.
Dean Strang, Robert Friebert, Dave Jones, Ray Dall'Ostro, John Ebbott, Brian
Gleason, John Birdsall, and Hank Schultz spoke in support of the petition. Carlo Esqueda,
 These cases include criminal, civil commitment, protective placement (personal guardianship), revocation of conditional liberty (probation, parole, or extended supervision), termination of parental rights, and juvenile delinquency proceedings and certain other juvenile court matters.
legislature requires that the SPD handle 67% of all felony and juvenile
indigent representation, and the private bar therefore no more than 33% of
indigent clients in those cases.
 In 1978, when the legislature established the SPD's role in circuit courts, the hourly rate of compensation for appointed lawyers was $35 ($25 for travel time). In 1992 the legislature increased private bar compensation to $50 for in-court time and $40 for out-of-court time; travel time remained unchanged at $25. However, in 1995, the legislature reduced the in-court rate to create a uniform $40 hourly rate. The $25 hourly rate for travel remained unchanged. The rate has not changed since 1995.
 See http://www.ca7.uscourts.gov/cja/cjarates.htm.
 In 1994 the supreme court increased the hourly compensation under SCR 81.02 from $60 to $70 after hearing argument and evidence that the $60 rate (a) was significantly lower than the average hourly rate charged by Wisconsin lawyers; (b) was not much higher than the office overhead rate for most lawyers; (c) reduced the number of experience lawyers taking court-appointed cases; and (d) impeded the provision of and reduced the quality of legal services to persons in need of these services.
petition states that in calendar year 2008 alone, "
 In 2010 the Legislature enacted 2009 Wisconsin Act 164, which expanded financial eligibility for public defender representation from the previous level set in 1987 (based on Aid to Families with Dependent Children limits) to current W-2 limits. It authorized 45 new SPD staff positions to handle the anticipated increased caseload that will result from the expanded eligibility guidelines. In April 2011 the Joint Finance Committee (JFC) voted to approve funding for 45 new SPD positions to handle the workload generated by expanded eligibility standards for criminal defendants that will take effect June 19, 2011.
The JFC also approved Governor Walker's budget proposal to increase funding to help fill the hole in the perennially under-funded SPD private bar appropriation, which has repeatedly run out of money during the second year of the biennium. The SPD budget as approved by JFC increases the private bar appropriation by $3.6 million. This will not cover the entire shortfall in the next biennium because it will not address a projected shortfall of $3.5 million for the current 2009-11 biennium, which ends June 30, 2011. The remaining shortfall this year will be carried forward into the next biennium and added to the projected shortfall in fiscal year 2013.