For the second time in three years, a group of lawyers is asking the state Supreme Court to require judges to appoint publicly funded attorneys in civil cases where a defendant's basic human needs are at stake.
When the court considered a similar petition three years ago, it declined to write any new rules for judges to follow when trying such cases; instead, it turned the matter over to the state Bar Association’s Access to Justice Commission to study.
John Ebbott, the director of Legal Action Wisconsin, filed the first petition and says he's filing another one now because the commission declined to fund a pilot project. He also says the problems faced by poor defendants in child custody and eviction cases haven't been solved.
“So wherever there's a vital interest like that – you need a roof over your head, you need a place to stay – those are the kinds of cases,” says Ebbott. “Every case should have fundamental fairness, but where is a lawyer most critical?”
Ebbott says the requirement to assure everyone gets a fair trial is included in both the state and federal constitutions, but judges are not interpreting that to mean that a lawyer is required, unless a defendant is charged with a criminal offense.
“There's a clear duty imposed on trial court judges in every case to analyze whether fundamental fairness requires the appointment of counsel,” says Ebbott. “And they're not making that analysis – they're not appointing counsel. They're ignoring that duty on an almost systematic basis.”
The current petition to the court calls on the justices to require judges to make that analysis in each case and asks the court fund a pilot project in one or two counties that will cover the cost of appointing attorneys in civil cases where basic human needs are at stake.