SCOW docket: Oh, never mind – SCOW changes its mind about deciding indigent defense case

Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. ​Italics indicate WJI insertions except for case names, which also are italicized.

The case: State of Wisconsin v. Nhia Lee

Majority opinion: Per curiam (1 page)

Concurrence: Justice Rebecca Grassl Bradley (3 pages), joined by Justices Annette K. Ziegler and Brian Hagedorn
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Dissent: Justice Rebecca F. Dallet (13 pages), joined by Justice Ann Walsh Bradley

The upshot and The guts

Nhia Lee petitioned for review of a decision of the court of appeals, State v. Lee, reversing the circuit court's orders denying his motion to dismiss the criminal complaint and remanding with directions to grant the motion and dismiss the criminal complaint without prejudice. After reviewing the record and the briefs, and after hearing oral arguments, we conclude that this matter should be dismissed as improvidently granted.

By the Court. – The review of the decision of the court of appeals is dismissed as improvidently granted. 

Grassl Bradley

Concurrence

In her dissent, Justice Rebecca Dallet identifies a number of "systemic issues" with the "process for appointing counsel for indigent defendants." Although acknowledging a lack of merit with two of the three issues Lee raises, she nevertheless accuses the court of "fail[ing] him" by dismissing his petition as improvidently granted. Justice Dallet doesn't explain how the court "fail[s]" Lee, considering he would remain incarcerated regardless of this court's disposition of his case. Even if one or more of Lee's issues have merit, Justice Dallet "agree[s] with the court of appeals that, consistent with our precedent, the correct remedy for failing to hold a timely preliminary examination is dismissal without prejudice for lack of personal jurisdiction." Resolving Lee's case therefore would require nothing more than an opinion from this court agreeing with the court of appeals. There are much better uses of this court's time than repeating work already done correctly by a lower court.

Justice Dallet seems to suggest Lee's case somehow offers an avenue for taking "transformative steps" to implement policy changes. As she sees it, "Lee's appeal provided the court with the chance to highlight the problems with our appointed-counsel system, so all three branches of government can begin working toward solutions." That's not part of our case-deciding function. When we grant a petition for review, we resolve issues of law.

The court's superintending authority, which Justice Dallet would apparently use to effect policy changes she acknowledges would inflict a financial burden on counties, "is ordinarily exercised when a party asserts error by the circuit court causing 'great and irreparable' 'hardship.' " There was no error in this case, and we should not transform it (or any other case) into a vehicle for "highlight[ing]" issues that are more properly considered through a rule petition or legislative proposal. The principal policy changes for which Justice Dallet advocates are properly considered by the legislature, which possesses the power of the purse. We don't have this power, which is why we should decide cases and leave policymaking to the legislature. 

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Dallet

Dissent
The criminal justice system has already failed Nhia Lee twice, and by dismissing his appeal, we fail him as well. First, he was not promptly appointed counsel after being charged with felony drug and identity theft offenses. Second, the circuit court and court commissioners, often over Lee's pro se objections, erroneously exercised their discretion by repeatedly extending the 10-day statutory time limit for holding a preliminary examination solely because the State Public Defender's Office (SPD) had not yet appointed counsel for Lee. Those extensions resulted in Lee being in custody for 113 days before a preliminary examination was held, 101 of which were prior to the appointment of counsel.

Now, with no explanation, the court dismisses his appeal as improvidently granted. By doing so, we minimize the important questions Lee's case raises about the efficacy of Wisconsin's process for appointing counsel for indigent defendants, which protects one of a defendant's most important constitutional rights. I write separately to discuss the systemic issues highlighted by Lee's case. 

Dallet agrees with the Court of Appeals finding that the correct response to the long delay in holding the preliminary hearing was dismissal of the charges without prejudice, meaning they could be refiled. She also agrees with the appeals court that his speedy-trial claim is premature.

And as for Lee's remaining constitutional claims – that the unjustified delay in holding a preliminary examination resulted in violations of his Sixth Amendment right to counsel or Fourteenth Amendment right to due process – it is not clear from the briefing that these claims, even if successful, would give Lee the remedy he seeks. ...

That said, Lee's final argument merits further attention: that we should use our superintending authority to require circuit courts to appoint counsel at county expense when there are delays in securing SPD-appointed counsel. There are several reasons why this court has not already done so. For starters, appointing counsel at county expense only responds to one reason SPD might have trouble finding an attorney willing to accept an appointment: the low hourly rate for SPD appointments, which is set by statute. Appointing counsel at county expense does not, however, address the other potential obstacles SPD might encounter, including heavy workloads or conflicts of interest among local lawyers, or a relative lack of qualified attorneys in a particular part of the state. Moreover, even if the issue is the meager compensation for SPD appointments, it is difficult to create a bright-line rule for when circuit courts would be required to appoint counsel at the more generous county rate, because any such line would necessarily be arbitrary and could have significant budgetary consequences for counties. 

Nevertheless, there are strong reasons to change the status quo, namely that the costs of maintaining it are too high. Counties bear not just the cost of paying court-appointed counsel but also the costs "of continuing to incarcerate the defendant while awaiting the preliminary hearing."

In addition to the monetary costs, delays in appointing counsel also impose significant and unquantifiable harms on both defendants and the public. Uncounseled defendants may be hindered in their ability to prepare a defense, engage in plea negotiations, or seek pretrial release. And failing to timely appoint counsel to represent an indigent defendant may tarnish the public's perception of the fairness of our criminal justice system by suggesting that speedy justice is available only to those who can afford a private attorney. Not to mention that delays in appointing counsel may lead to the same negative consequences as any other pre-trial delay, such as postponing closure for victims or increasing the chance that witnesses may become unavailable. 

The court of appeals' decision helps to alleviate some of these concerns by mandating that circuit courts carefully consider and analyze, on the record, all relevant factors before extending the statutory time limit for a preliminary examination. Importantly, the court of appeals also emphasized that "simply observing that the defendant has not yet had counsel appointed by SPD is insufficient" to justify extending that time limit. 

Indeed, Lee's case perfectly illustrates that point, as well as broader systemic issues. At each of Lee's 12 review hearings, the circuit court or court commissioner extended the time for holding a preliminary examination on their own motion and often over Lee's objections. Such extensions require a finding of cause; yet the record indicates that neither the circuit court nor the court commissioners knew the cause for the delay. For example, at the fifth review hearing, a court commissioner told Lee, "I wish I could tell you what the hold up is . . . . I'm not sure what the hold up is on your particular case." After Lee wrote the circuit court in mid-October asking for the case to be dismissed due to the failure to hold a preliminary examination, more than three weeks passed before the circuit court held a hearing on Lee's request. At that hearing, a SPD attorney appeared and explained that SPD had contacted over 100 attorneys and none were willing to represent Lee, but she was not asked why that was the case. After the review hearing, the circuit court observed that the delay was "getting very, very close to the point where the Court could find a constitutional violation," but it refused to dismiss the case. Lee waited 44 more days for counsel to finally be appointed. 

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"Delays will likely increase as the criminal-justice system responds to a statewide backlog of more than 17,000 felony cases." – Wisconsin Supreme Court Justice Rebecca F. Dallet

The facts of this case are concerning, and reflect a breakdown in our system of appointing attorneys for indigent defendants. Even prior to the COVID-19 pandemic, SPD staffing shortages and a low hourly rate for appointed counsel resulted in delays in finding counsel for indigent defendants, especially to more rural parts of the state. Delays will likely increase as the criminal-justice system responds to a statewide backlog of more than 17,000 felony cases.

Although circuit courts cannot solve all of the state's appointed-counsel problems on their own, they can help to prevent unjust delays by ensuring that extensions of time for holding a preliminary examination are granted only upon a finding of cause. Circuit courts should also seriously consider using their power to appoint counsel at county expense, especially when they find, as the circuit court put it in this case, that the delay is "very, very close to . . . a constitutional violation." Additionally, more transformative steps are needed from all three branches of government, including allocating additional funding for indigent criminal defense, encouraging increased pro bono participation, and providing incentives for attorneys to live and practice in the rural parts of the state where these problems are particularly pressing.