After five years, Wisconsin Supreme Court dismisses petition to assist indigent civil litigants

By Margo Kirchner
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After multiple hearings and studies, the Wisconsin Supreme Court has denied a long-pending petition seeking appointment of counsel for low-income people in civil cases that affect the litigants’ “basic human needs.”
 
Unlike defendants in criminal cases, litigants in civil cases generally do not have any right to counsel.
 
Back in September 2013, John Ebbott and Thomas Cannon, then the executive directors of Legal Action of Wisconsin and the Legal Aid Society of Milwaukee, respectively, asked the Court to fund a pilot project testing the appointment of counsel in civil cases and to adopt a new court rule requiring appointment of counsel in civil cases when “necessary to ensure a fundamentally fair hearing in a court proceeding that will affect the litigant’s basic human needs.”  Basic human needs included “sustenance, shelter, heat, medical care, safety, and child custody and placement,” Ebbott and Cannon said.
 
The Court had denied a similar rule petition previously, saying that “the effect of the proposal on circuit courts and counties is largely unknown but may be substantial.” The Wisconsin Access to Justice Commission (WATJC) later developed a pilot project to test civil appointments, but the State Bar of Wisconsin declined to fund it.
 
The WATJC, a nonprofit organization created by the Wisconsin Supreme Court at the request of the State Bar of Wisconsin, aids the Court in expanding access to the civil justice system for unrepresented, low-income Wisconsin residents. Providing civil legal aid can assure fairness for those involved in the justice system, reduce court costs, and strengthen communities, according to the organization.
 
The 2013 petition sought funding of the pilot project by the Supreme Court.
 
The Court discussed the petition at an open administrative rules conference in December 2013 but held off decision at that time.
 
The WATJC, in an October 2014 letter from its then-president, retired Milwaukee Municipal Court Judge James Gramling, suggested that if the Court chose not to fund and implement the pilot project it could ask the Wisconsin Legislature to create a legislative study committee to examine “the costs, benefits, scope, and revenue options” of an appointed-counsel plan for low-income litigants in civil cases involving basic human needs.

The Court discussed the petition again in December 2014. Then, over a year later, in January 2016, the Court formally requested creation of a study committee. The Joint Legislative Council agreed, creating the Study Committee on Access to Civil Legal Services.
 
The Committee met from July 2016 through February 2017 and after consideration of the issue recommended three bills, which the Joint Legislative Council passed on to the Legislature. One bill encouraged several state agencies to allocate federal block grant money for civil legal aid to qualified individuals. Another proposed creation of an interagency council to evaluate how improved access to civil legal services could further the goals of the agencies. And the third allowed district attorneys and their deputy and assistant district attorneys to provide pro bono legal services to low-income persons or to nonprofits as long as the services did not conflict with the interests of the attorney’s county — presumably increasing the number of attorneys providing legal services to the poor.
 
The bills were introduced in the 2017-18 legislative session, but died.
 
The Court, in its order this month, said the conclusion of work by the Joint Legislative Council study committee made it appropriate to dismiss the rule petition.
 
No pilot program, no rule change, no legislation from the study committee’s work.
 
 “The Court’s order brings this petition to a conclusion — but not the effort to give low-income litigants a shot at a fair result in court,” Gramling said in an email. He remains on the commission and – full disclosure – is a WJI Board member. “Our Commission will continue to present ideas to the Supreme Court for ‘expanding access to the civil justice system for unrepresented low-income Wisconsin residents’ — the mission given us by the Court when it created the Commission.”