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Bender v. State

United States District Court, W.D. Wisconsin

September 18, 2019

JOSEPH W. BENDER, ET AL., On behalf of themselves and all others similarly situated,, Plaintiffs,


          WILLIAM M. CONLEY, District Judge.

         In this lawsuit, the named plaintiffs allege that the State of Wisconsin, Governor Anthony Evers, and Wisconsin State Public Defender Kelli Thompson are “fail[ing] to provide constitutionally required, effective legal representation to indigent people accused of crimes for which there is a possibility of incarceration” in violation of and the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Sections 7 and 8 of the Wisconsin Constitution. (Am. Compl. (dkt. #10) ¶ 1.) Plaintiffs also seek to represent a class of similarly-situated indigent persons. Presently before the court is defendants’ motion to dismiss. (Mot. to Dismiss (dkt. #11) 1.) For reasons of comity and deference to the State of Wisconsin’s administration of justice, this motion must be granted.[1]


         The complaint identifies a dozen named plaintiffs, each of whom reside in Wisconsin and have been state-court criminal defendants. While eligible for representation from the Wisconsin State Public Defender’s Office (the “SPD”), each also waited for months before receiving counsel, delaying the progress of their cases and forcing them to appear in court without counsel, as well as otherwise disrupting their lives. Plaintiffs further seek to represent a class of

all indigent persons who are now or who will be under formal charge before a state court in Wisconsin of having committed any offense, the penalty for which includes the possibility of confinement, incarceration, imprisonment, or detention in a correctional facility (regardless of whether actually imposed), and who are unable to provide for the full payment of an attorney and all other necessary expenses of representation in defending against the charge.

(Am. Compl. (dkt. #10) ¶ 119.)

         The SPD is responsible for providing “effective legal representation to indigent people accused of committing crimes for which there is a possibility of incarceration.” (Id. ¶ 27.) SPD staff attorneys have significant caseloads, preventing them from providing representation for all eligible defendants. Even when that is not the case, conflicts of interest can prevent the SPD from representing some eligible criminal defendants. To provide necessary representation in such instances, the SPD turns to appointed counsel from the private bar, who are compensated at $40/hour. See Wis. Stat. § 977.08. This compensation is the lowest in the country; indeed, it is so low that “private attorneys actually lose money by taking on representation.” (Am. Compl. (dkt. #10) ¶ 29.) As such, most experienced attorneys are generally unwilling to accept such appointments and even less-experienced attorneys are financially discouraged from accepting such appointments, except as a last resort.

         Unsurprisingly, the SPD has then experienced difficulty in recruiting local attorneys to accept these appointments, especially in small, rural communities. For example, in far Northern Wisconsin counties like Ashland and Bayfield, 73% and 99% of SPD appointments, respectively, go to private attorneys from other counties. In such counties, the local SPD offices spent an average of 24 days contacting an average of 39 attorneys before finding a single private attorney willing to accept an appointment. In some cases, circuit courts have even resorted to “order[ing] an SPD staff attorney to make a special appearance for an unrepresented client,” although this is likely “constitutionally inadequate legal representation” because the staff attorney lacks the time to prepare adequately for these hearings or even to meet with the defendant ahead of time. (Id. ¶ 46.)

         Where the SPD cannot successfully recruit counsel, state circuit courts may appoint counsel at the expense of the county. Moreover, as the Wisconsin Supreme Court recently decided to increase the compensation for such court-appointed counsel from $70/hour to $100/hour, such appointments have further complicated the SPD’s recruitment efforts, because private attorneys now have an increased incentive to decline its appointments in the hopes of an appointment by the court for a two or threefold increase in compensation. Wis. S.Ct. Order 17-06 (issued June 27, 2018, eff. Jan. 1, 2020). Although ultimately deciding that this rate increase was “reasonable and necessary,” id. at 14, the Wisconsin Supreme Court was sharply aware of the collateral effects of their decision to increase the rate for court-appointed counsel. Specifically recognizing the “interplay between the rate paid by the SPD and the court's rate in SCR 81.02,” the court expressed their deep concern over the impact of SPD underfunding, yet “trust[ed] 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.” Id. at 14-15.

         As a result of the challenges the SPD faces in recruiting counsel, many criminal court proceedings must be repeatedly adjourned because indigent defendants do not yet have legal representation. In addition, because many indigent defendants lack the education necessary to represent or advocate for themselves effectively as to their right to a speedy trial, they remain incarcerated for long periods of time before proceedings even begin. In other cases, indigent defendants are forced to represent themselves at bail hearings, which can also result in long, unnecessary stays in jail because of their extended incarceration. Many criminal defendants also lose their jobs awaiting a bail hearing, a fact which no doubt further undermines requests for release.[3] Finally, extended incarceration adds to the already overcrowded jails, worsening the conditions for those defendants that are left languishing there.

         Even indigent criminal defendants who do receive appointed counsel do not necessarily end up with adequate representation. First, the low compensation available limits counsel’s ability to engage in discovery, fact investigation, expert discovery, and trial preparation. Second, appointed attorneys tend to lack experience and are not provided training or mentorship from the SPD.

         Despite having constitutional rights to effective counsel and a speedy trial, therefore, a “state of crisis” exists where indigent criminal defendants facing the possibility of incarceration “are simply not being promptly appointed the effective legal counsel mandated by the United States and Wisconsin Constitutions.” (Id. ¶ 25.) Plaintiffs ultimately lay the blame for these problems with the State:

The State of Wisconsin is the source of all these constitutional violations. The State issues the criminal charges. The accused who are detained before trial are imprisoned by the State. The State funds the SPD and sets the rate of compensation for appointed attorneys. The State is aware that among the rights of the accused are the Right to Counsel, the right to Due Process, and the Right to a Speedy Trial. However, the State’s failure to sufficiently fund the SPD or adequately compensate private attorneys for their time has deprived the Plaintiffs, and all those similarly situated, of these constitutionally-mandated rights.

(Id. ¶ 49.)


         Plaintiffs argue that defendants’ failure to provide effective legal representation to plaintiffs and other similarly situated indigent criminal defendants violates the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Sections 7 and 8 of the Wisconsin Constitution. (Am. Compl. (dkt. #10) ¶ 1.) To remedy these alleged violations, plaintiffs seek broad declaratory, injunctive and monetary relief. Defendants have moved to dismiss plaintiffs’ claims on three grounds: (1) Younger v. Harris,401 U.S. 37 (1971), and its progeny require ...

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