Judge rules discovery can start later this month in lawsuit against public defender shortage

A Brown County judge ruled Monday that the current and former jail inmates suing Gov. Tony Evers and the Public Defender Board over a shortage of attorneys for indigent defendants can begin requesting discovery from the state as early as Aug. 22. 

The lawsuit was filed last year by eight people who alleged that the lack of available public defenders violates their constitutional rights. 

A shortage of available attorneys has caused delays for defendants facing criminal charges across the state. Fox11 in Green Bay reported in May that despite contacting more than 500 attorneys, the state Public Defender’s Office was unable to find someone who could represent a man charged with first-degree intentional homicide as a party to a crime. 

The original request for discovery, which includes information and documents different parties to a lawsuit are required to share with each other, was made last September yet had been stayed by Judge Thomas Walsh because he was waiting for further argument in the case and to see how the state budget process affected the public defender system. 

“But I would have had to have my head buried in the sand not to realize that the Legislature and the governor has recently infused a great deal of money into this,” Walsh said. 

The 2023-25 state budget signed by Evers earlier this summer included pay raises for the public defenders and assistant district attorneys who handle most of the state’s criminal casework. The budget also increased the amount the state pays private attorneys who take public defender cases from $70 per hour to $100 per hour. 

In a motion filed in the case last week, the state Department of Justice said those budget changes should help the problem. 

“After the enactment of the biennial budget, SPD will be able to pay assistant state public defenders more, which will help SPD recruit and retain its talented staff,” the motion states. “SPD will also be able to pay appointed counsel a higher hourly rate, increasing the availability of counsel and the speed with which counsel can be appointed. It is too early to measure specific outcomes regarding appointment times, but they will likely be shortened.”

There are two pending motions in the case, one from the state to dismiss the lawsuit and one from the plaintiffs seeking to have the suit declared a class action. 

At a hearing Monday, an attorney for the plaintiffs argued that they’ve already been waiting for nearly a year on the discovery request, the stay that delayed the discovery has expired and the plaintiffs still have important questions about how the shortage of public defenders is affecting people’s criminal cases across the state. He added that assessing how the budget increases help the problem can’t be calculated until the present state of the problem is determined. 

“The state from our perspective is now required by law to respond to the plaintiffs’ discovery request. We understand that the court may be poised to make a decision on the state’s motion to dismiss. But given that the stay has now expired, we think that it would behoove all of us to start to build a factual record as soon as possible given the urgency of the situation,” the attorney, Jason Williamson, said. “The court has indicated its interest in determining the potential impact of next year’s budget on the current crisis. And it seems to us as we prepare our response to the state’s brief on this issue, that the only way to determine that impact, if any, is to get a clearer sense of what’s happening on the ground right now.” 

“We think we need to know, at the very least, how many indigent defendants are currently without counsel? What are they charged with? How long are they waiting? And how many of them are in custody?” he continued. “And it seems to us that those are questions that the state should be readily able to answer.” 

Assistant Attorney General Clayton Kawski argued that if Walsh is going to dismiss the case in early September, it would be wasteful for the state to start doing the work to comply with the request for discovery. 

“If the court is going to grant the motion to dismiss, then it would be wasteful for the parties to engage in discovery,” he said. 

At the hearing, Walsh ruled that the stay on discovery would be lifted on Aug. 22 and that he planned to issue a ruling on the pending motions by early September. He noted that if the parties wanted to, they could start the discovery process.