By Gretchen Schuldt
The State Supreme Court spoke in three different voices when it decided to give court-appointed lawyers a raise to $100 an hour from $70 starting in January 2020,
The Court was united, though, in refusing to give lawyers appointed by State Public Defender's Office (SPD) any raise at all. Those lawyers are paid $40 per hour to represent indigent clients, the lowest rate in the nation.
The court recently released its order on appointed lawyer pay. It was in response to a petition seeking the raise for court-appointed lawyers, plus a $100-per-hour-rate for SPD-appointed lawyers.
The court said it had the power to increase the rate for the former group, but did not want a fight with the Legislature over a raise for the latter.
Justices Ann Walsh Bradley and Shirley S. Abrahamson concurred and dissented with parts of the Court's order, saying the raise for court-appointed lawyers should begin sooner. Justices Daniel Kelly and Rebecca G. Bradley dissented, saying the Supreme Court should not even should not grant raises to court-appointed lawyers because the power of the purse belongs to the Legislature.
So first, a few excerpts from the section of the unsigned order demurring on the raises for SPD-appointed lawyers.
Chronic underfunding of the Office of the State Public Defender (SPD) has reached a crisis point.
Most attorneys will not accept SPD appointments because they literally lose money if they take these cases. Consequently, the SPD struggles to find counsel who will represent indigent criminal defendants.
The threshold question is whether this court has the authority to declare a legislative mandate "unreasonable." ...This court has traditionally exercised great care to avoid controversy with the legislature. We are highly mindful of the separation of powers and do not engage in direct confrontation with another branch of government unless the confrontation is necessary and unavoidable. ... We thus decline to use our administrative regulatory process to undermine a legislative enactment.
We are, however, deeply concerned about the impact of prolonged underfunding of the SPD on our duty to ensure the effective administration of justice in Wisconsin. We agree that the consequence - significant delays in the appointment of counsel - compromises the integrity of the court system and imposes collateral costs on criminal defendants and their families, and on all citizens of this state: jobs lost, additional expenses incurred, and justice denied. We have a constitutional responsibility to ensure that every defendant stands equal before the law and is afforded his or her right to a fair trial as guaranteed by our constitution.
We hope that a confrontation in the form of a constitutional challenge will not occur and trust that the legislature will work with the courts, the SPD, the petitioners, the counties, and other justice partners to ensure adequate funding for the SPD that is urgently needed to forestall what is clearly, an emerging constitutional crisis.
The A.W. Bradley / Abrahamson concurrence / dissent was just two paragraphs long. They supported a raise for court-appointed attorneys, but wanted it sooner.
"I would make the increase effective July 1, 2018," A.W. Bradley wrote. "I would not unduly delay the effective date of this change."
Kelly was much more verbose in his dissent, which clocked in at more than 10 pages. He was joined by R. G. Bradley. Some brief excerpts follow.
Compensation for attorneys appointed by the court to represent indigent criminal defendants is absurdly inadequate. The petitioners have established this proposition to an almost metaphysical certainty, which is no mean feat for a question of economics. The solution seems pretty simple——pay more. And it would be that simple if we shared the power of the purse with the legislature, there were no limits to financial resources or competing demands for them, and the money used to pay the attorneys belonged to the court. As it is, none of those conditions is true. So when we tell Wisconsin's counties to pay for the attorneys we appoint, we are trespassing on authority that belongs to others.
We know, and have known for over two-hundred years, that the power of the purse belongs to the legislature, not us.
So our constitution, our cases, and the wisdom of the Founders all tell us that only the legislature may make appropriations. But when we tell counties to pay the attorneys we appoint, we are exercising that power.
I am not insensible to the fact that Wisconsin's judiciary has been ordering counties to pay for appointed counsel for almost as long as we have been a State. Such a lengthy history is due considerable respect. ...But the judiciary cannot expand its authority into the legislative domain through adverse possession,1 or the legislature's long acquiescence.
We should honor the wisdom of the Founders, and relinquish this incursion on legislative prerogatives. This would fix the error we have entertained for an exceedingly long time, but it will not fix the very real problem the petitioners brought to us. They speak truly when they say there is a constitutional crisis on the horizon. The evidence that indigent defendants are being held in jail for extended periods of time for want of counsel is deeply disturbing. The constitution may have something to say about the predicament of such defendants; it would be unfortunate if a declaration on that question were necessary.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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