Wisconsin Supreme Court approves increase in attorney assessment to fund public interest legal services

By Alexandria Staubach
 
The Supreme Court recently voted 4-3 to increase an annual assessment on Wisconsin attorneys that funds civil legal services for those who cannot pay.
 
A $50 public interest legal services assessment has been on the books since 2005 as part of annual fees for Wisconsin attorneys. The assessment will increase to $75 for two years then to $100.
 
Retied Milwaukee County Circuit Court Judge Richard Sankovitz spoke on behalf of the petitioners, eight legal service providers or supporters, at a March 13 hearing on the request for the increase. He stressed that a steady stream of revenue to those providing free or reduce cost civil legal services is essential to continuity of service.
 
The reliability of the funds from the attorney assessment is one of its essential features, especially in a landscape where groups otherwise rely on discretionary grants that vary from year to year, he said.
 
At least 3,000 people are aided by the funds from the assessment each year, Sankovitz said. He described how the funding provides direct legal services for individuals on matters ranging from access medical care coverage to temporary restraining orders for domestic violence victims.
 
There was near unanimous agreement in the Supreme Court hearing room that the Legislature should be doing more to support legal services for those who cannot afford attorneys. But the Legislature has appropriated funds only once in the assessment’s 20-year history, Sankovitz said.
 
At the recent hearing, as in 2005, some justices questioned whether such a fee is constitutional.
 
At oral arguments, Justice Brian Hagedorn said he was “sympathetic to the idea that this is an unconstitutional tax.” “What limits are there on our power to raise funds?” he asked.
 
Hagedorn also expressed concerns that some of the nonprofits that receive funds provided from the assessment may have ideological stances that attorneys disagree with. Are we not “asking attorneys to subsidize work they may not agree with?” he asked.
 
“There is no stopping point,” said Justice Rebecca Grassl Bradley. She said she was sympathetic to the cause because her family could not afford needed civil legal services when she was young. But “we went without,” she said.
 
At the justices’ open conference following oral arguments, Justice Janet Protasiewicz moved to adopt the measure. The assessment will address “a pressing need,” she said.
 
A court majority then determined that in the absence of Legislative funding it was appropriate to continue the assessment and approve the increase.
 
Justice Ann Walsh Bradley was the only current justice on the bench when the rule was originally adopted in 2005. She said she was voting for the measure because the bench and bar have “an ethical obligation” to ensure “the quality of legal representation.”
 
While Chief Justice Annette Zeigler ultimately voted against the petition, she said “on a personal level I can’t say I am disappointed that these services will continue to be funded.”
 
Wisconsin Justice Initiative submitted written support of the petition to increase the assessment, and WJI Board member James Gramling spoke on behalf of WJI at the hearing on the petition.
 
Gramling said “the pro bono efforts that are made by members of the State Bar are huge, but they are not enough to address the need.”
 
In its letter, WJI highlighted that legal representation “assists the court by streamlining proceedings, providing otherwise pro se litigants with explanations of procedures and law, reducing the need for law clerks and judges to conduct research, and getting to the heart of a case and to judgment more quickly.”
 
Many other organizations and individuals shared WJI’s support for the petition in writing or at the hearing.
 
Waukesha Circuit Court Judge William Domina, who had testified against the introduction of the assessment in 2005, appeared at the hearing now in support. He said that in his 40 years as a Wisconsin attorney and 15 years on the bench he has observed both “an increase in demand” and an “increase in the self-represented.” Domina urged the court to consider “that costs have increased over time and ours will as well.”
 
In written submissions on the petition for the fee increase, only one writer, an attorney, opposed the measure, while 33 supported it.
 
Another entity, the State Bar of Wisconsin, submitted a response that did not take a “binary position” entirely for or against the petition. Instead, the State Bar presented the results of a survey of its 18,000 members. The survey, to which roughly 17% of Wisconsin attorneys responded, showed that 65% opposed the increase. “(A)s an organization representing Members with divided opinions on this subject,” though, the State Bar also presented in its written submission some of the arguments its members expressed for and against.
 
State Bar President Ryan Billings appeared at the hearing on the petition as well and highlighted the views of State Bar members opposing the petition. He said that funding civil legal services was the right to thing to do but that it was a “question of what is the appropriate mechanism.”
 
Billings, and the court’s more conservative justices, thought funding for civil legal services was the responsibility of the Legislature.