Judge warns high court ruling may impact Waupaca County’s finances

By Robert Cloud

Judge Troy Nielsen

Waupaca County faces significant costs in potential legal fees, depending on how the Wisconsin Supreme Court rules in a pending case.

Judge Troy Nielsen explained the ramifications of the case to the county Finance Committee when it met on Sept. 8.

“The impact on our (county) budget will be unimaginable, in my opinion,” Nielsen said.

At issue is whether circuit courts must provide attorneys for defendants at county expense.

Nielsen explained that currently there are three methods that a defendant in a criminal case can obtain legal counsel.

Defendants can pay for their own attorney.

They may qualify for a public defender if they cannot afford to hire an attorney.

Or, the judge may appoint an attorney if the defendant’s income or assets are too high to qualify for a public defender, but they do not have enough cash to pay a lawyer’s retainer fees.

Under the third method, the judge appoints an attorney, the county pays the attorney’s fees, then the court collects the money from the defendant.

Nielsen said when Waupaca County judges assign an attorney, they require defendants to sign a wage assignment agreement.

The court then garnishes about $50 to $100 per month to pay the defendant’s legal fees.

Nielsen said Waupaca County spent about $26,000 for court-assigned attorney fees, but collected about $32,000 as of June 30 this year.

Supreme Court case

The case currently before the state Supreme Court seeks to require county circuit courts to provide a court-appointed attorney if a state public defender is not found within 10 days.

State law requires that a preliminary hearing be scheduled within 10 days of the initial hearing.

At an initial hearing on Sept. 11, 2018, Marathon County charged Nhia Lee with possession of amphetamine with intent to deliver, misappropriation of ID and possession of drug paraphernalia.

The judge ordered a $25,000 cash bond and scheduled a preliminary hearing for Sept. 19, 2018.

On Sept. 14, 2018, Lee appeared at a review hearing via video while in custody.

No public defender had been appointed yet and the judge found “good cause” to extend the time limits for the preliminary hearing.

At subsequent review hearings, Lee’s preliminary hearing would be delayed 11 times because the state public defender’s office had yet to find an attorney to represent Lee.

Suzanne O’Neil, who headed the public defender’s office in Marathon County at the time, told the judge overseeing Lee’s case that her office had contacted at least 100 attorneys throughout the state, but had been unable to find legal counsel for Lee.

On Dec. 12, 2018, the public defender’s office appointed Julianne Lennon to represent Lee.

Lee’s preliminary hearing was held on Jan. 2, 2019, 113 days after the time limit set by state law.

Lennon filed a motion to dismiss the case, arguing that the delay violated Lee’s Sixth Amendment rights to a speedy trial, right to counsel and due process.

After the circuit court judge ruled against her motion, Lennon filed an appeal that eventually made its way to the Wisconsin Supreme Court.

Lee remains in custody in the Marathon County jail.

Nielsen said the Supreme Court could decide on the case by the end of this year.

How ruling may affect county

Quoting a brief from the Wisconsin Counties Association, Nielsen said that the court’s decision “would devastate Wisconsin counties.”

“Judges would need to appoint attorneys at county expense to represent defendants charged with extremely serious crimes that are complicated, that will take hours of lawyering to resolve and we’re paying them $100 per hour,” Nielsen said. “Most of these defendants are convicted of a serious crime and they go to prison for a long period of time.”

Nielsen said trying to recoup the legal costs of a defendant who is financially eligible for a public defender is “like getting blood out of a turnip.”

Nielsen, who was a public defender prior to being elected circuit court judge, described two Waupaca County homicide cases he handled.

He said he spent more than 1,200 hours on one case and he and his supervisor spent a total of 3,000 hours on the other case.

The state was billed $100 per hour on each case.

The county could find itself paying hundreds of thousands of dollars in legal fees.

“This is a problem that needs a statewide legislative solution,” Nielsen said. “If we don’t get one, then we as judges are required at some point in time to provide counsel in these cases. We’re going to do it through gritted teeth, grudgingly, but we’re going to do what the supreme Court says we have to.”

Quoting from the Wisconsin Counties Association brief, Nielsen said, “Because the state delegates a multitude of functions to counties for which they receive only partial reimbursement, counties are already straining to fund characteristically state operations.”